Unfulfilled warrants and unpaid loans: The argument for mandamus in the retrieval of public funds
In a significant development, High Courts across India are stepping in to aid financial institutions in the recovery of public money. This replicable strategy, known as Mandamus, offers a constitutional remedy when warrants remain unexecuted despite statutory mandates.
The issue at hand is the prolonged non-execution of warrants, which not only frustrates recovery but also emboldens wilful defaulters. This situation is particularly prevalent in the case of Permanent Non-Bailable Warrants (PNBWs) issued against absconding accused, leading to thousands of prosecutions stalling after their issuance.
Once a PNBW is issued, courts usually remove the matter from regular cause lists until the accused is produced. However, the responsibility for execution of PNBWs lies with the police, but execution rates remain abysmally low due to limited resources, lack of monitoring, and an apparent reluctance to treat financial default cases as priorities.
To address this, several High Courts have already intervened, ordering special teams for warrant execution and mandating coordination meetings between courts and police. This proactive approach aims to streamline the process, create systemic mechanisms, and recognise the public interest in efficient execution.
The Madras High Court model, if adapted by other High Courts, could transform dormant warrants into active enforcement tools, accelerating recovery and strengthening confidence in legal remedies. This model encourages the systematic use of technology, inter-agency coordination, and better data management to overcome the challenge of accused persons changing residences or business addresses.
Moreover, Mandamus may be the catalyst India's debt recovery regime has long awaited. By seeking direct orders from High Courts to execute pending warrants without delay, financial institutions can potentially recover significant amounts of public money.
However, to prevent one-time compliance, High Courts may need to institutionalise review. This could include quarterly reports, contempt proceedings for defaults, and integration of warrant data into e-court systems. This continuous monitoring would ensure that the system remains effective and that the recovery process continues unhindered.
In conclusion, the use of Mandamus represents a significant step towards improving India's debt recovery regime. By boosting recovery efforts and strengthening confidence in legal remedies, it has the potential to revive moribund prosecutions, improve judicial credibility, and protect public funds.
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