By Dr. Sailaja Petikam
Under the Indian Constitution, an Ordinance is a specific kind of executive decision (issued by a Governor or President on the advice of the State or Centre Government respectively) that operates as a law.
Although law making power usually lies with the legislative branch of the government, the executive is given the power to issue Ordinance in exceptional situations, with the ordinances remaining in force for a limited period of time. The legislature can enact a law incorporating the provisions of an Ordinance. However, the legislature can also pass a resolution disapproving the ordinance, in which case the Ordinance will cease to operate. The legislature can also choose to do nothing, in which case the ordinance will lapse within six weeks from the beginning of the next session of Parliament or the relevant State Legislature.
Recently the President of India promulgates the Ordinance under Article 123 of the Constitution of India by the name The Fugitive Economic Offenders Ordinance, 2018. It is the first Ordinance passed by the President of India in this year. The main object of the Ordinance is to provide for measures to deter fugitive economic offenders from evading the process of law of India by staying outside the jurisdiction of Indian Courts, to preserve the sanctity of the rule of law in India.
Actually “Fugitive Economic Offender” means any individual against whom a warrant for arrest in relation to (offences mentioned in the Schedule) of this Ordinance has been issued by any Court in India, who- has left India so as to avoid criminal prosecution; or (ii) being abroad, refuse to return to India to face criminal procedure. The total value involved in such offence/s is one hundred crore rupees or more.
As per this Ordinance, Schedule Offences are mainly Offences relating to dishonor of Cheques under Negotiable Instruments Act, 1881; offences under the Reserve Bank Of India Act, 1834; Offences under the Central Excise Act, 1944; Offences under the Customs Act, 1962; Offences under the Prohibition of Benami Property Transactions Act, 1988; offences under the Prevention of Corruption Act, 1988; Offences under the Prevention of Money Laundering Act, 2002; Offences under the Securities and Exchange Board Of India Act, 1992; Offences under the Limited Liability Act, 2008 and some of the Offences mentioned in the Indian Penal Code, 1860 namely under sections 255, 257, 417, 421, 467, 471, 472, 481, 489-A, 489-B etc.
The Authorities appointed for the purposes of the Prevention of Money-Laundering Act, 2002 shall be the Authorities for the purpose of this Ordinance. One more thing is according to this ordinance person includes may be an individual or, a Hindu Undivided Family or, a company or, a trust or, a partnership or, a limited liability partnership or, an association of person or a body of individuals, whether incorporated or not.
Procedure to declare the person as a Fugitive Economic Offender: The Director or any other officer authorized by the Director who are appointed under the Prevention of Money-Laundering Act, may file an application in such form and manner as may be prescribed in the Special Court that such individual may be declared as a fugitive economic offender, and also with the permission of the Special Court, attach any property mentioned in the application by an order in writing in such a manner as may be prescribed.
Sometimes the authority, upon information obtained during survey, is satisfied that any evidence shall be or is likely to be concealed or tampered with, he may, for reasons to be recorded in writing, enter and search the building or place where such evidence is located and seize that evidence. No female shall be searched by anyone except a female.
Thereafter the Special Court shall issue a notice to an individual who is alleged to be a fugitive economic offender. Within six weeks of serving of notices the individual may appear otherwise, property may be confiscated under this ordinance. A notice may be served through e-mail address submitted either in allotment of PAN under section 139-A of I.T. Act, 1961 or for enrolment under section 3 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits) Act, 2016.
After appearance one week time period is given to file a reply to the application. After hearing, if the Special Court is satisfied that an individual is a fugitive economic offender, it may, by an order, declare the individual as a fugitive economic offender for reasons to be recorded in writing. The confiscation order of the Special Court shall separately list any other property owned by the fugitive economic offender in India which is to be confiscated.
All the rights and title in the confiscated property shall, from the date of the confiscation order, vest in the Central Government, free from all encumbrances.
Notwithstanding anything contained in any other law for the time being in force, on declaration of an individual as a fugitive economic offender, any Court or Tribunal in India, in any civil proceeding before it, may disallow such individual from putting forward or defending any civil claim.
The provisions of this Ordinance shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force. The provision of this Ordinance shall be in addition to and not in derogation of any other law for the time being in force.
It is the President of India, legislative power as per the Constitutional authority to promulgate the ordinance and it will be become an Act after approving legislatures. A seven judge bench of the Supreme Court last year passed a judgment in Krishna Kumar Singh and Another Vs. State of Bihar and Others, holding that actions taken under an Ordinance will not necessarily survive if the Ordinance lapses or ceases to operate. It has been a recent trend in various states in India as well as at a Central Government level for the government to seek to impose laws without going through the Constitutionality prescribed mechanism.
An appeal shall lie from any judgment or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law. No civil court shall have a jurisdiction to entertain any suit or proceeding in respect of any matter which the Special Court is empowered by or under this Ordinance to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Ordinance.