Robust legal framework key to combat illicit trade

By Manoj Kumar, Hammurabi & Solomon
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While a 2019 report of the World Economic Forum forecasts that India will become the third largest consumer market after the US and China with a gross domestic product growth of 7.5%, and domestic consumption estimated at US$6 trillion by 2030, the need for legally backed frameworks against illicit trade across sectors remains a priority for the government of India.

Manoj-Kumar-Hammurabi-&-Solomon
Manoj Kumar
Hammurabi & Solomon

The recent implementation of a World Health Organization (WHO) protocol on combatting illicit trade in tobacco is a significant beginning and paves the way for a comprehensive illicit trade control framework impacting the sustainability of players in a variety of sectors that damage the economy, impact public health and raise environmental concerns and, in some instances, also possibly being used to fund illicit activities.

The signing of the WHO protocol by India earlier last year and its recent implementation marked a step towards India’s committed efforts to curb illicit trade of goods as well as ending the evasion of taxes by ghost or illicit manufacturers.

Going forward, initiatives will need to be more focused and should implement a comprehensive legal, regulatory and policy framework for illicit trade control backed by a dedicated nodal agency. There is also need for setting up improved supply chain security, improved law enforcement, accelerated collaboration among stakeholders on all sides of the consumption cycle and the shift to a tax regime that disincentivizes illicit trade in goods.

In addition to the tobacco industry, multilateral bodies as well as other sectoral stakeholders such as computer hardware and peripherals, pharmacy and electronics have been raising their concerns over illicit trade in goods fuelled by both smuggling as well as illegal manufacturing.

There has been rampant misuse of the provisions of the Industrial (Development & Regulation) Act, 1951 (act), to engage in illegal manufacturing of goods that otherwise requires compulsory licenses without actually obtaining such a license on the pretext of small-scale industry status.

In this regard, the dichotomy between the categories of industries requiring compulsory industrial license and the definition of a “factory” under the act has been used by mischievous manufacturers to make, sell and operate in an unregulated space resulting in violation of laws applicable to specified sectors, apart from applicable public health and safety and environmental laws. Manufacturing units employing fewer than 50 workers with the aid of power and 100 workers without the aid of power are then set up without obtaining compulsory licenses in the guise of small-scale industries. The definition of “factory” not being in accordance with the classification of “sectors” where obtaining an industrial license is compulsory, has led to these ghost manufacturers operating in a space where there is neither regulation nor any legal or regulatory oversight.

The way forward for legal, regulatory and policy frameworks for illicit trade control is to address trade issues, enhance border and customs control, strengthen tax and revenue oversight, enhance health, environment and consumer advocacy and protection, as well as to empower law enforcement, prosecution and the judiciary.

This includes improved supply chain security in phases of design, manufacturing, distribution and retailing of goods by implementing transparency and regulatory oversight.

Further, the use of blockchain for logging all transactions leading up to the manufacturing process and thereafter in the distribution and retailing of goods would be critical to ensure much-needed transparency, incorruptibility and oversight to curb illicit trade.

The Competition Commission of India (CCI) also has a deeper role to play in cases of illicit manufacturers operating on the strength of loopholes in laws to side step applicable sectoral restrictions and oversight. The CCI is empowered to correct any anti-competitive behaviour or actions of players in the relevant market in order to ensure sustainability of other players in such market and to prevent irreparable damage to the economy.

In addition to a comprehensive legal, regulatory and policy framework, there needs to be a sustained multilateral dialogue on illicit trade control across jurisdictions, deeper coordination among law enforcement and regulatory bodies within India, consistent stakeholder and consumer advocacy on illicit trade control and its effects across sectors and compulsory use of technology to make transactions incorruptible and ensure transparency. This outlines the task cut out for combatting illicit trade in India following the steps taken in this regard in the tobacco sector.

Manoj Kumar is the founder and managing partner at Hammurabi & Solomon

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