WHITE COLLAR CRIMES AND POLICE IN INDIA: THEORIES, CHALLENGES, AND REFORMS BY: MR. SUSHANT PRASHANT AWALE
WHITE COLLAR CRIMES AND POLICE IN
INDIA: THEORIES, CHALLENGES, AND REFORMS
AUTHORED BY: MR. SUSHANT PRASHANT AWALE
Designation: LL.M. Student, Batch 2024-2025
Affiliation: Gujarat National Law University
Introduction
to White-Collar Crimes in India: With Reference to Demonetisation
Demonetization was recently held to
be a good faith practice of the government to curb black money, corruption,
terrorism-funding etc. The government was essentially given a clean chit by India’s
apex court.[1] Supreme
Court Justice B.V Nagarathna was the dissenter 4:1 majority judgment. She said
the following: -
“If really India wanted
to go from paper currency to plastic currency, demonetisation was not a reason
for it…I thought it was a way of converting black money into white.”[2]
One can understand the analysis of J
Nagarathna that perhaps the exercise of demonetisation was a way of laundering
money, as the reality was not far from what she had estimated. The suspicion
towards NDA is legitimate as the same government in the year 2000 started the
‘Mauritius route’ which became a tax haven for anonymous investors.[3] It
was therefore no wonder that an exercise aimed at curbing black money and
corruption by the same government led to money laundering and corruption.
Just three months later from the
demonetisation exercise, a report was published by Al-Jazeera pointing to the
fact that the rich, i.e., the ones with any real opportunity to launder money
had (almost) entirely escaped the consequence. It stated: -
“He contacted
his suppliers and purchased fabrics in advance, all in 500- and 1,000-rupee
notes. He said that for him, this was the main source of getting rid of old
currency notes… He decided to give them all hefty cash advances, also in old
notes.”[4]
Thus, payments of salaries in
advance, payment of rents in advance, purchase of exorbitant amount of gold,
and collaborating with bank officials[5] —
these all were the means involved in escaping demonetisation.
This
was not helped by the fact that unlike the earlier predictions of the
government, over 99% of the currency was returned back to RBI, making the
exercise a practical failure in purging black money from the system.[6]
This case study begs the questions:
Why do the people with higher socio-economic status escape consequences of
their criminality? Why do the policing agencies fail in their task to check
such deviance? What are the challenges faced by policing agencies in dealing
with white-collared criminals? And finally, what must be done to do justice in
matters of white-collared crimes?
Objectives
of the Study
1. To assess the progress of Criminal Jurisprudence
on white-collared criminality from its inception to its current status.
2. To find out the challenges faced by
policing agencies in dealing with white-collared criminals.
3. To elucidate solutions/suggestions
for the problems faced by Indian Enforcement and Investigative agencies.
Chapter 1. Theories of White-Collar
Crime from Discovery to Critical Legal Study: Relevancy to Indian context
Al Capone called White-Collar Crimes
as “The Legitimate Rackets”.
White collar crimes are “non-violent,
financially motivated offenses committed by individuals in positions of trust
or responsibility, often within the corporate or business world. Examples of
white-collar crimes include embezzlement, fraud, insider trading, bribery,
money laundering, and cybercrime.”[7]
1.
Edwin Sutherland’s Discovery of
White-Collar Crimes
Edwin Sutherland noticed a research
gap in the criminal law of his time, wherein certain behaviors by the
economically and socially affluent were not seen as criminal despite having a
systemically violent effect on society at large. He coined the term
‘White-Collar crime” in a speech in 1939.
Sutherland defined white-collar crime
as “a crime committed by a person of respectability and high social status in
the course of his occupation.”[8] He
emphasized that white-collar crime was different from street crime in that it
was committed by individuals in positions of trust and responsibility, often
within the corporate or the business world, and involved financial crimes such
as embezzlement, fraud, and insider trading.
It is interesting to note that due to
his introduction of this concept, his work was seen as a threat to various
different corporations whose ‘wrongdoings’ he had compiled into his work. This
led to a complete censorship of his work ‘White Collar Crime’, until it was
later published by Yale without censorship.
Thus, Sutherland challenged not only future
criminal law scholars but also Nation-States to deal with the challenge of
criminalizing the most powerful within their society when they exceed their
bounds and threaten the system with their vast criminal prowess.
His challenge remains to be fulfilled
by the Indian authorities.
2.
Dr. Valeria Weis’ Theory of Criminal
Selectivity and White-Collar Crimes
Analysis of White-collar crime and
its criminalization would be inadequate without mention of Dr. Valeria Vegh
Weis’[9]
theory of History of Criminal Selectivity. According to Dr. Weis, in our
current social order which she describes as a Bulimic[10]
social order, certain behaviours are over-criminalised while others such as
white-collar crimes and other financial maneuvers are under-criminalised at
both primary and secondary levels of criminal system: -
1.
Primary Under-Criminalization: Therefore, white-collar crimes are under-criminalised at
the primary level (primary under-criminalisation) which constitutes police,
taxing officers, and other agents of the State, which are supposedly there to
stop such crimes, ‘protection of the general populace’ being there formal
function.
2.
Secondary Under-Criminalization: Then, following primary under-criminalisation, courts and
other agencies that pass judgments on such crimes also fail to punitively
punish the white-collared criminals, or simply take a lenient and liberal
approach towards unconventional crimes. Thus, such behaviours though deemed
deviant by many are under-criminalised at the secondary level too.[11]
Weis (2017) also emphasizes the
relationship between private and public sector in white-collar crimes, stating
a certain ‘symbiotic confluence’ type of relationship between them that occurs
in the neo-liberalizing and globalizing era. She states: -
“The central element of
secondary under-criminalization of white-collar crimes had to do with the link
between the private and the public sector. From a relationship of mere
cooperation between state agencies and perpetrators during the second
disciplining phase, white-collar crimes initiated a path towards a symbiotic
confluence between public and private interests”[12]
This symbiosis will be further
discussed in the next chapter of this paper, giving a realization-focused
understanding of the same in the Indian Context.
Chapter
2. Challenges Faced and Various Reforms
“There is no scene of crime
susceptible to forensic examination, no corpse to be identified for clues, no
victim witness and rarely any untainted witness.”[13]
In the following section, I have
tried to provide a non-exhaustive list of the challenges faced by Enforcement
agencies involved in the machinery of white-collared crimes.
1. Legal and Enforcement Pluralism:
Opportunity for Conflict or Collaboration?
A cumbersome work was done by Naushad
and Raiz (2021) to compile almost all of the contemporary issues and
complexities involved in the legal machinery of White-Collar crimes is India.
They point out the issue of significant delay in courts that can be caused by a
white-collar criminal in the machinery of law with the help of legal know-how
of elite lawyers and firms at their behest. They state as such: -
“…accused who are
financially sound and aware of the nuances of law often find it easy to prolong
criminal proceedings by resorting to filing of multiple appeals and
applications, taking adjournments, and so on. Such accused also have the legal
teams in their armory which could help improve their chances of prolonging or
succeeding in a given case.”[14]
The figure (below) represents the
legal pluralism involved in laws related with white-collar crimes in India
which makes the law extremely fragmented, involving a conflict of a lot of
authorities (while also providing opportunities for co-operation), and a
pluralism of fines and punishments and enforcement bodies.
The authors however also point out
the positive in the legal pluralism as the legislative intent behind the
plurality might be to simply not leave any space for the white-collar criminal
to escape their legal chains. In other words, the legislative intent[15]
behind the phrasing of these provisions may well be to outpace those who engage
in white-collar crime, adept at maneuvering through the murky waters of legal
ambiguities and gaps to amass their ill-gotten gains.
Naushad and Raiz (2021) point out how
the texts of these acts are so wide in their connotation that any offence could
be molded to be an offence under IPC (now BNS), PMLA, or Companies Act, 2013. They
said: -
“The text of certain
penal provisions in statutes such as Companies Act, 2013 (see Section 447), and
PMLA (see Sections 2(u) and 3), are fluid and wide in nature, so much so that
it is still unclear and subject to judicial interpretation as to, for example,
which actions could result in an offence of fraud under Companies Act, 2013, or
money laundering under PMLA...can bring within its ambit a host of actions
which may not currently be considered as amounting to such offences”.[16]
Thus, a white-collar crime may at
once be a “Criminal breach of Trust” under Section 316 Bhartiya Nyaya Sanhita
2023, “Fraud” under section 447 of Companies Act 2013, and an offence of
money-laundering under Section 3 PMLA, 2002. Further, if such Act involves
data/accounts manipulation using hacking, then Section 66 and 70 of Information
Technology Act 2000 may also be attracted. Further, if some hush-money
(bribe) has been paid to a public servant, then as a bribe-giver the offender
is also punishable under Section 8 of Prevention of Corruption Act, 1988.
The penology of such a crime is
theoretically extremely deterrent, involving a variety of punishments, fines,
intrusion of privacy by various enforcement and investigating agencies, media
backlash, public backlash, market backlash, etc. However, practically due to a
variety of reasons that will be discussed in this chapter, these acts by the powerful
yet remain under-criminalised (Weis, 2017).
The enforcement and investigation bodies
involved in white-collar crimes can be listed as following: -
I.
Central
Bureau of Investigation (CBI)
II.
Directorate
of Enforcement (ED)
III.
Serious
Fraud Investigation Office (SFIO)
IV.
Directorate
of Revenue Intelligence
V.
Economic
Offences Wing
Other bodies may include local police
authorities which will act as a supplementary force to these authorities as per
needed. Authorities such as SEBI also are brought into white-collar crime
matters, as will be discussed in the case study of Adani-Hindenburg-SEBI in
Part 3 of this chapter.
All of these agencies have to deal
with certain similar problems inherent in identification of white-collar crimes
such as “social position, intelligence, and criminal technique”[17],
which leads to an immunity towards being categorized and recognized as a
criminal in the first place. This challenge leads to many white-collar crimes
not even reaching the stage of investigation, let alone prosecution and
incarceration, which have their own sets of different problems.
a) Electoral Bonds Case and Finance Act,
2017.
Naushad and Raiz (2021) have also
discussed the problems with the Finance Act which near-constantly brings out
amendments for the Indian Legal Mechanism related with white-collar crimes,
making the legal pluralism even further dynamic, confusing, and hard to trace.
In the case of Association for
Democratic Reforms v Union of India[18], the
problem stated above is seen. Certain Amendments done by the Finance Act of
2017 were discussed which facilitated the Electoral Bonds Scheme.
This even included an amendment to
Companies Act, 2013, removing the ceiling on how much a corporation could
donate to a political party of their choosing. This was seen by many dissenters
as an act of state-sanctioned and legalized corruption.[19] This
legitimated corruption can be seen as yet another example of the ‘symbiotic
confluence’ described by Weis (2017) which complicates the investigation
process by creating a pro-establishment bias in the enforcement agencies.
2. Lack of Independence of Enforcement
Body
In an era wherein there is a
symbiotic relationship between public and private sector with acts such as
entire legalized and normalized lobbying present in most nations (Including
India) it is now more important than ever that Enforcement Agencies that police
corruption and white-collar crimes be exempt from the influence of both public
and private sector.
a) Central Bureau of Investigation and
Directorate of Enforcement
In the Supreme Court Case of Dr.
Jaya Thakur v Union of India[20], the
power of the union to extend the tenure of ED and CBI was upheld. The two Acts,
namely, Central Vigilance Commission (Amendment) Act, 2021, and the Delhi
Special Police Establishment (Amendment) Act, 2021 were upheld.
Jurist Gauri Kashyap points out the
opposition to such effort to monopolize bodies that are involved in machinery
of corruption-busting. She states: -
“The Bench noted that
there were sufficient safeguards in the functioning of the CBI and ED to ensure
that independence of the institutions will be protected. In March 2023, 14
opposition leaders approached the Supreme Court for protection from arrests by
the ED. They submitted that since 2014, a whopping 95% of
arrests have been of members of the opposition.”[21]
According to various independent
reports by news agencies, Directorate of Enforcement has been used as a tool to
quash any opposition to the establishment (especially during the time of
elections), thus helping perpetuate the government for as long as possible[22],
subverting democracy of our nation.
Not just ED, but the premier body of
investigation known as Central Bureau of Investigation (CBI) has been dealing
with the perception of being a ‘caged parrot’. The implication being that it is
both parroting the words of the establishment, while being territorialized by
the ruling party. In this, I would concur with the opinion of Justice Ujjal
Bhuyan in the recent Arwing Kejriwal case[23]
that: -
“It is in public interest that CBI
must not only be above board, but must also be seen to be so. Every effort must
be made to remove any perception that investigation was carried out unfairly
and that the arrest was made in a high-handed and biased manner… Not long ago, this court has castigated the CBI comparing it to a caged
parrot. It is imperative that CBI dispels the notion of it being a caged
parrot. Rather, the perception should be that of an uncaged parrot.”[24]
In other words, only truly
independent investigating and enforcement agencies can possibly tackle the
problem of corruption, otherwise it would lead to a situation wherein the
criminals are vicariously investigating their own offences, giving themselves a
clean-chit, all while destroying their opposition in a ‘Darwinian Power
Struggle’.
3. Lack of International Co-operation:
Cross-Border Investigations
As a reaction to many crimes becoming
globalized in nature and criminals often fleeing off-shore, (cyber-crime being
the most notorious example as of late) many Nation-States have been fueled by
the desire for co-operation for the sake of curbing global white-collar crimes.
India followed suit by developing Reciprocal
relationships with other Nations using Section 105 of CrPC[25]
(now S. 110 of Bhartiya Nagrik Suraksha Sanhita, 2023[26])
upon experiencing first-hand how white-collar criminals like Vijay Mallya and
Nirav Modi escape accountability by absconding far from the reach of Indian law
enforcement agencies like CBI and ED. So far around 42 nations have entered
into Mutual Legal Assistance Treaties (MLATs). However, since we do not have a
mutual understanding treaty with hundreds of other nations, that only leaves
the white-collared criminals more options to escape.
One more problem that remains with
MLATs is that it completely depends on Indian Parliament’s willingness to
pursue such investigations in a foreign territory. To illustrate the same, let
us look at the latest ‘scandal’ that broke out in relation to Adani group of
companies and a U.S.-based Research Firm known as Hindenburg Research.
a) Adani: Hindenburg and SEBI in
Conflict
Adani, the 3rd Richest man
in India, who has recently rose to power as the richest man in India has been
alleged to be involved in one of the largest money laundering schemes in
history by a US-based Research group known as Hindenburg Research, and he has
been alleged to be using the previously discussed NDA-given ‘Mauritius Route’
for the same.[27]
According to the report, many
instances of money laundering, fraud and document-forging at the hand of Adani
group has been noted: -
“The Adani Group has
previously been the focus of 4 major government fraud investigations which have
alleged money laundering, theft of taxpayer funds and corruption, totaling an
estimated U.S. $17 billion. Adani family members allegedly cooperated to
create offshore shell entities in tax-haven jurisdictions like Mauritius,
the UAE, and Caribbean Islands, generating forged import/export
documentation in an apparent effort to generate fake or illegitimate turnover
and to siphon money from the listed companies.”[28]
Despite an MLAT existing between
Mauritius and India, as well as U.S. and India, neither of the governments have
initiated a co-operative effort to pursue investigation with respect to the
Adani group. Instead, conflict has ensued between India’s SEBI and U.S.’s
Hindenburg.[29]
b) Cyber-Crime and International
Co-operation
In the context of cloud computing,
data can be scattered across numerous service suppliers, destinations, and even
countries, making it difficult to secure digital evidence for the system of
criminal justice. Adopting and implementing such a pluralistic framework might
be difficult when there are numerous jurisdictions and sectors to consider.
The Budapest Convention on Cybercrime
is currently tackling these challenges. According to the Council De Europe
website, the purpose of the Convention is stated as such: -
“…permits hundreds of
practitioners from Parties to share experience and create relationships that
facilitate cooperation in specific cases”[30]
The agreement is particularly
concerned with allowing criminal justice officials to access evidence held in
cloud computing systems.
However, India is neither a party
nor a signatory to this convention, leaving the investigating agencies with
even less resources to work with when investigating white-collar crimes that
involve a cyber element stored in a global/overseas data system.
4.
Informal Sector Economy and The Wage
Thieves
One oft-ignored area of white-collar
criminality is known as wage theft, in which corporate organizations fail to
uphold their promise of salary, benefits, and compensations to the employees or
their families by using various shrewd business practices such as not paying However,
India is neither a party nor a signatory to this convention, leaving the
investigating agencies with even less resources to work with when investigating
white-collar crimes that involve a cyber element stored in a global/overseas
data system.
overtime salary, paying less than
minimum wages illegally etc.
With an abnormally high percentage of
informal sector of employment, with more than 90%[31]
being employed without a formal contract and benefits, it becomes easier than
ever to commit wage theft in India. Wage theft as a socio-economic crime
affects the livelihood of lakhs of families in India and thus has far-reaching
consequences.
Many harrowing stories on unpaid
back-wages in Karnataka and non-payment of lump sum amount owed to migrant
workers have come forward in recent times, brought to light by Workers’ Rights’
Organisations. The organization Pay Your Workers pointed out in 2020: -
a) Shahi Exports Wage Theft: Case Study
“In April 2020, a minimum wage
increase went into effect in the Indian state of Karnataka, one of the
country's largest centers of garment manufacturing. Garment factory owners
producing for leading apparel brands refused to pay. As a result, 400,000 garment
workers across over a thousand factories were cheated of the legal minimum
wage – amounting to nearly $60 million in back wages owed.”[32]
Only after a struggle of independent
Worker bodies and activists around the world was a resistance against Shahi
Exports (the largest textile producer in India) was built enough to make the
company finally pay their dues to the workers.[33]
This was one of the worst cases of
wage theft in India ever seen and yet no involvement of any State body was
present. This points to not just the inefficiency and inability, but the apathy
of the State towards the issue of wage theft. As Weis (2017) points out, there
exists in white collar crimes a public-private symbiosis, wherein the lines
between public and private blurs to a large extent.
Wage Theft is not yet criminalised in
India, as all of these are considered mere issues of civil nature, however it
must be seen that this issue does not remain within the purview of civil
authorities and instead is brought to the purview of Criminal Investigation
Bodies such as ED, CBI, SEBI etc.
b) Kerala Labour-line: Case Study
In a pro-labor initiative started by
Kochi, a mechanism for redressal and recording of labor complaints has been
devised. Within a span of 18 months, around 1000 calls have been received
complaining of a total estimated 2 crores worth of Wage Theft.[34]
This toll-free helpline was targeted
towards the workers in the informal economy. The legal issues of these workers
are also stated as follows: -
“…the victimised workers… lack
evidence of employment or wage dues, leaving little room for legal resolution.
Workers cannot complain against the employer as it will invite repercussions in
the form of loss of job and accommodation, said Mr. Peter highlighting the
plight of informal workers.”[35]
Though State-sanctioned institutions
such as District Legal Services Authority (DLSA) are present to help the
workers, they are clearly tooth-less and claw-less tigers against giant
employer corporations. In this very case, corporate impunity has been
demonstrated in a harrowing display of criminal apathy: -
“Though 48 cases, in which there were
some evidences to back up the claims, have so far been referred to the District
Legal Services Authority, not a single case has been resolved yet. In fact,
none of the employers turned up at an Adalat organised by the authority last
December.”[36]
Due to a lack of resources, the
Kerala Labour-line had to scale down its operations. Lack of State support and
care in this case is apparent as migrant workers are left to their own
resources yet again.
Conclusion
Through a critical analysis of
criminal jurisprudence on white collar crimes, we can see a consonance between
the views of Dr. Weis and Edwin Sutherland in their firm assertion that
White-Collar Crime is under-criminalised due to theoretical gaps in criminal
law and certain systemic issues like ‘symbiotic confluence’ and its
technological-institutional complexity, combined with Socio-economic standing
of the white-collared individual.
Some of the challenges mentioned in
chapter 2 must be overcome by either: -
1. Ensuring the independence of the
Current Law Enforcement Agencies from the interference of Political Parties; Or
2. By creation of an independent
institution like Hong Kong’s ICAC which functions on the basis of community education/involvement
and thorough surveying of State and Private Institutions both.
3. Collaboration of Existing National Agencies
4. Inter-State Collaboration and
Co-operation by way of Conventions and Treaties
There is a common theme that runs
throughout this paper, which is the theme of ‘deregulation’ and ‘neo-liberalism’
or ‘crony capitalism’, which allows impunity and free reign to the corporates
favored by the establishment, blurring the lines between public and private
sector. Efforts must be made by the State to create sites of resistance against
these tendencies, such as instituting an Independent Commission Against
Corruption such as in Wales, using three-pronged approach of detection,
prevention, and education.
However, Amartya Sen’s warning in
‘The Idea of Justice’ must be kept in mind, wherein he pointed out that no
perfect institution can be made that stops injustice altogether, instead a
realization-focused approach must be taken seeing that not only ‘Niti’ (organizational
arrangements) but ‘Nyaya’ (real-life effect on people through law) is also seen
to be taken into consideration. He emphasizes an accomplishment-based
understanding of Justice, wherein emphasis is on enhancing justice and curbing
injustice as much as possible.
One such way to do both ‘Niti’ and
‘Nyaya’ in case of Wage Theft would be to criminalize such malpractices so they
are no longer seen as “shrewd business practices”, but crimes worthy of
deterrence and retribution. However, in the longer run a shift towards a formal
economy would help workers claim their rights with relevant evidence. Similar
Toll-free worker helplines must be created in every State for informal workers
to register their distress. In this way, not only accessibility of justice
would be enhanced, but injustice would be reduced.
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[3] Ramachandran Vaidyanathan, Black
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[4] Kaytie Nielsen, ‘How Indians
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