Magna Carta, or the Great Charter, was written on parchme-nt and was sealed by King John, the younger brother of Richard the Lionheart, in 1215. It is still considered as the foundation of the legal and constitutional framework for the UK despite being formulated 800 years ago. This 13th century document declares that no one is above the law. On Monday, June 15, 2015, Queen Elizabeth II led commemorations to mark the 800th anniversary of the Magna Carta. On the same day in India, the Lalit Modi cartel got exposed. The contrasts speak volumes about our attitude towards the justice system in India.
In the Indian context, the question arises: What is the law of the land in respect of accusations against Mr Modi? Are the laws potent and meaningful to achieve desired results? And most importantly, is the intention of law clear in its objectives? The Constitution of India is the driving force for promulgating any law in India post Independence. Every law, before it comes into existence has to be evaluated on the scale of fundamental rights guaranteed to its citizens. And any law, after enactment may be challenged as ultra vires to the provisions of the Constitution. As such there is always a conflict in the intentions of the executive wing of the government, and judiciary of the country in the matter of interpretation of law. Both accuse each other of overreach.
The Lalit Modi affair is controversial to say the least. The law of the land says that he is an accused (not an offender or culprit till charges against him are established) and is wanted in India to face charges levelled against him. He is away from India and is based in the UK to mastermind his defences against allegations of money laundering etc. Now, the Foreign Exchange Management Act (FEMA) is practically toothless till a criminal case is registered against an accused person and gets teeth under PMLA (Prevention of Money Laundering Act). PMLA is a potent legal instrument.
A light-blue-corner notice was issued against Mr Modi — requiring his presence in India to face charges. His passport had been cancelled but Mr Modi challenged it in the high court within days of its annulment. He has been securely living in the UK for last the six years. He happens to be a named accused in 16 cases. But he is only one of the accused persons with others named in those cases. No charges levelled against Mr Modi have been established as yet. As a citizen of India, he has every right to defend himself. However, the defence has to be within the legal framework of Indian laws. He can’t take refuge in another country and try to thwart the efforts of the Government of India to get him extradited to India. But the Indian government has hardly made any concrete efforts to extradite him. Mere notices are not sufficient.
Since Mr Modi is now located in London, it would be prudent to examine the provisions of the UK Bribery Act, 2011. It has become the most powerful legislation ever. Its provisions must be viewed in light of the workings of the US department of justice and the United Kingdom’s serious fraud office (SFO). Almost 36 years ago, the Foreign Corrupt Practices Act was passed. However, between 1977 and 2008, there were only a few prosecutions. It was difficult to fund its operations particularly under money laundering laws etc. Between 2006 and 2010, there were many more prosecutions. In 2008, Siemens paid a record $450 million fine for having violated the FCPA (Foreign Corrupt Practices Act). In the centre of many a scandal there were lawyers and consultants based out of and not in the US.
The serious fraud office in the UK had consulted the US department of justice to bring into force a law that not only has global jurisdiction but “fills the gap” on loopholes in the FCPA (Foreign Corrupt Practices Act). As a result, the UK Bribery Act, 2011, came into being. In its original form, it was devastating, with the SFO having powers to prosecute retrospectively. This provision was repealed. Significant facts about UK Bribery Act, 2011 are noteworthy: This is not a law restricted to UK’s residents. This is applicable to those who have any commercial relationship with anyone in the UK.
Therefore, it is applicable wherever you are, if you have a partner, associate, joint venture, sub-contractor, director, shareholder, suppliers, or any commercial relationship that links your business to England, Wales or Scotland. (Mr Modi has it). You are within the purview of the Act and can be prosecuted, no matter where in the world you are based and where you had committed the offence for or on behalf of UK’s subjects.
This includes being inducted in the UK, even if your business is registered in another country like India, the US, Canada, Australia, Pakistan etc. The essence of all democratic justice is the “presumption of innocence” or in other words “innocent until proven guilty” (Mr Modi is not yet proven guilty). If an allegation of corruption is made under the UK Bribery Act, 2011, the accused must prove his innocence. The burden of proof shifts from prosecution to the accused person as in Prevention of Corruption Act, India.
For example, if member 1 (an American citizen) enlists support of a UK counterpart (member 2) to get work done in India (by member 3) and the Indian pays a small facilitation money (bribe) to a public servant in India, all would be guilty of criminal offence under the UK Bribery Act, 2011. Mr Modi is evading legal processes of Indian law enforcement agencies and is living in London for the last six years. Why can’t the Government of India take recourse to the UK Bribery Act, 2011, to extradite him to India? Why can’t India enter into a legal arrangement with the UK to invoke provisions of the UK Bribery Act, 2011, on reciprocal basis?
As the Magna Carta established, the king is also within the purview of law and no innocent person can be convicted. Let us take the Magna Carta in the correct perspective rather than embark upon Modi cartel and witch-hunting. The law must prevail.
The writer is a former CBI officer
