Capital Punishment in new Avatar

The legal tenet that has been inculcated in us for ages is that, “One is presumed innocent till proved guilty.”

But, if one were to go by ‘judgements’ handed down in recent times, it is the other way around – “One is presumed guilty till proven innocent” – to quote an old adage, ‘Even if one drinks pure milk under a Palmyra tree, others presume it must be Toddy’.

While indeed there are black sheep in the flock, it is unfair that everyone is tainted with the same brush and a litigant with a genuine cause is denied “NATURAL JUSTICE.”

What is Natural Justice?

In India the principle is prevalent from ancient times. We find, it is invoked in Kautilya’s Artha-shastra. In this context, para 43 of the judgment of the Hon’ble Supreme Court in the case of Mohinder Singh Gill vs. Chief Election Commissioner, AIR 1978 SC 851,  quoted below would seem to be of relevance:

“Indeed, natural justice is a pervasive facet of secular law where aspiritual touch enlivens legislation, administration and adjudication,to make fairness a creed of life. It has many colours and shades, many forms and shapes and, save where valid law excludes, it applies when people are affected by acts of authority. It is the bone of healthy government, recognised from earliest times and not a mystic testament of judge made law. Indeed from the legendary days of Adam and of Kautllya’s Arthashastra-the rule of law has had this stamp of natural justice, which makes it social justice. We need not go into these deeps for the present except to indicate that the roots of natural justice and its foliage are noble and not new-fangled. Today its application must be sustained by current legislation, case law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system.”

Principles Of Natural Justice as seen In Indian Constitution :

In the Constitution of India, the principle of ‘Natural Justice’ would be seen to be running as a ‘golden thread’:

Preamble of the constitution includes the words, ‘Justice, Social, Economic and political’ liberty of thought, expression, belief, faith and worship etc.Equality of status and of opportunity, which not only ensures fairness in social and economic activities of the people but also acts as a shield to individual’s liberty against arbitrary actions, which acts as the base for the principles of Natural Justice. Even Art 14 ensures equality before law and equal protection of law to the citizens of our country.

The moot question- Is the process of natural justice getting diluted or the interpretation has changed? This is particularly relevant in the context of SARFEASI act 2002, which is in direct conflict with Art. 14 and infringes on the fundamental right and principle of Natural Justice.

SARFEASI act is draconian in nature. It does not give the opportunity to the victim to bring the realities to the fore. It not only defies the meaning of natural justice but has opened the flood gates for misuse.

Year 2008-09 i.e. year of economic meltdown is considered as year “Horribilis” in the annals of global business history. This brought to knees even the mightiest. SME were the worst effected due to inattentive year in the corridors of Government. Banks were having the field day by delaying the restructuring and crucifying the spirit of RBI circulars to handle such situations. Banks thus enjoyed sweeping powers thereby opening the doors for settling personal scores, polishing the egos, giving rise to cartel of purchasers who act like vultures to acquire only the profitable assets, thereby camouflaging their own deeds of omissions. It is becoming extremely dangerous over the period to leave the power of declaring NPAs with the banks. Perhaps there is a need to create an independent authority where all the NPAs be referred by all the banks for scrutiny on the causes before allowing the banks to declare any asset as an NPA or any other suitable action as the case may be. Banks today, for reasons best known to them, are in a hurry to invoke SARFAESI Act rather than adequately and proper restructuring of the stressed asset.

Various reports in the media have painted only the entrepreneurs as culprits for the rising NPAs thereby side lining the extraneous causes beyond the control of an entrepreneur, such as General Environment, Impact of Govt. Policies, Role of banks, high rate of interest, advent of multinationals with virtual zero cost of funds etc.  It is highly important at this juncture to bifurcate trading and industrial NPAs and data be built up for analysing and taking corrective actions.  There is also a dire need to fine tune definition in terms of Dead Assets and Revivable assets. In current scenario, viable but stressed asset has the same fate as that of a dead asset.It will be worthwhile having an exercise to quantify the gains achieved through this act.

Entrepreneur of today is a changed entity. Majority of them intend to be on the right side of law. Ups and downs in business is a natural phenomenon and be viewed accordingly. Analysis and actions based on suspicion will never yield right results and will be deterrent to the industrial growth.

SME sector is vastly broad-based and contributes immensely to industrial production, exports, GDP and employment which is so vital for the country.   Harassment and unilateral actions of banks will dissuade entrepreneurship besides denting the “Make in India” and “Ease of business” objectives of the Government.

SARFEASI act needs refinement and is worse than IT act clause 66A which has been scrapped.

For an entrepreneur, Judiciary is the highest pedestal of justice and looks at it with respect and hope. But on occasions, a preconceived notion deprives the entrepreneur of justice and becomes one of the main causes of entry barrier for second generation in the business

An entrepreneur of today is like an “Antelope” and vulnerable to attack from all corners. Not only Government but sections of media have launched “Save the Tiger” campaigns but unfortunately today, there is no platform available to “Save the Antelope”, which is a vital cog in the wheel of development and support to the Government initiative of “Make in India” campaign.

For an entrepreneur of today, SARFEASI act, is nothing but a “Capital Punishment in a New Avtar”, why? – Because people consigned to gallows can still find solace in mercy petitions but victim of SARFAESI faces a certain premature demise.

The legal tenet that has been inculcated in us for ages is that “One is presumed innocent till proved guilty”.

But, if one were to go by ‘judgements’ handed down in recent times, it is the other way around – “One is presumed guilty till proven innocent”

Entrepreneur of today is a changed entity. Majority of them intend to be on the right side of law. Ups and downs in business is a natural phenomenon and be viewed accordingly. Analysis and actions based on suspicion will never yield right results and will be deterrent to the industrial growth

SARFEASI act is draconian in nature. It does not give the opportunity to the victim to bring the realities to the fore. It not only defies the meaning of natural justice but has opened the flood gates for misuse

Ranjit Kapoor

The Author is an Industrialist and an activist

4 thoughts on “Capital Punishment in new Avatar”

  1. Jitu says:

    Seriously!!!

  2. Monika says:

    Why u do this?

  3. pankaj says:

    Good article

  4. yogesh says:

    Well written

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