By Mohd Naushad Khan

The Supreme Court verdict upholding amendments to the money laundering Act has raised many questions and opposition parties have called for a review. On July 27, the Supreme Court upheld the rights of the Enforcement Directorate (ED) under the (Prevention of Money Laundering Act) PMLA to make arrests, attach property, and conduct searches. Experts are apprehensive about its long-term impact and are of the opinion that the verdict may put personal liberty of citizens at risk. 

According to Fuzail Ahmad Ayyubi, Advocate-on-Record, Supreme Court of India, “In simple terms Supreme Court has revalidated not so liberty oriented provisions in the PMLA like the self-incriminating statement given to the ED officer shall be valid, ECIR is not an FIR and therefore not necessarily be given to the accused, merely grounds of arrest indicated by the ED official to the accused shall suffice, the onus will be on the accused to prove that he is innocent juxtaposed to the cardinal rule of the criminal law that everybody is presumed to be innocent unless proven guilty by the prosecution.”

He added, “Another aspect of the ruling is that just like Section 6A of the Citizenship Act which is regarding a special provision for the Assam which has been referred to the Constitution Bench to ascertain its constitutionality; however, NRC pursuant to Section 6A has already been conducted in Assam; so assuming if the Constitution Bench finds the Section 6A unconstitutional then the entire NRC conducted in the state of Assam with so much of efforts and pain shall be invalid. Similar will be the situation here in PMLA; if the issue of amendments made in PMLA through Finance Act is held unconstitutional then all that was being found valid and constitutional today in this judgement shall have to go.” 

John Dayal, noted social and human rights activist, while sharing his concern on the issue, told Radiance, “It is not just the PMLA but the other judgments of the Supreme Court that have to be taken collectively show how the highest court in the land is going along with the government’s weaponization of the Enforcement Department together with the NIA and the CBI, not to combat or contain crime, but to crush dissent and to totally overwhelm and overpower political opposition parties. The ED is being used in the states to terrorise the ruling parties there, and to see if they can be broken up, their MLAs bought, and the regime toppled to put in place a BJP government in a non-elected manner. We saw this in Maharashtra recently and fear we may see it soon in Bengal and Jharkhand. In Maharashtra, the courts have facilitated the coming in of the BJP. The Apex Court has remained blind as this politics played out before the eyes of the nation.

“The PMLA issue exposes the government thoroughly.  Most of the Great Bank Robbers, as they should be called, are physically safe in their plush homes in England. The money they have smuggled out of India remains untouched. Their properties in India and their companies have been seized, auctioned and money given to the banks. It is clear from the data the government disclosed in court that cases have skyrocketed in the last two years.  In 2016-17, there were 200 cases; in 2017-18 the figure was 48, which went up in 2018-19 to 195. But in 2019-20, it jumped to 562. Only 313 people have been arrested under the Act in recent years,” said Dayal.

Dayal argued, “While the real bank looters remain safe in their exile in the UK, those impacted by the judgment are political leaders such as Anil Deshmukh, Karti Chidambaram, Bhupinder Singh Hooda, Farooq Abdullah, Mehbooba Mufti, Nawab Malik, and Abhishek Banerjee. The Supreme Court by its order has strengthened the ED by upholding its power to make arrests and carry out investigations in money laundering cases. It has upheld most provisions of the Prevention of Money Laundering Act, the most terrifying being the matter of bail. The court said it is enough if the ED officers, at the time of arrest, disclose grounds for such arrest, the court said.”

Advocate Nasir Aziz, president of SAMLA (South Asian Minorities Lawyers Association) said, “The Supreme Court verdict in PMLA delivered in recent weeks is a blow to the already fragile criminal justice system prevalent in India at the moment. Any law which unabashedly deprives an undertrial of his liberty is a body blow to the idea of a fair justice system. In India, the bail has been the rule, and not the jail as was held by the Hon’ble Apex Court decades ago. There should not be a doubt in the argument that it is the State’s responsibility to frame laws suited enough to deal with criminal acts of an aggravated nature to maintain a balance in the society. But this judgement goes against a golden rule that deprivation of liberty even for a day is a day too many, as famously held by Justice Chandrachud.” 

H added, “But the recent SC verdict authored by Mr Justice Khanwilkar has the effect of disturbing that balance as the twin conditions for the detenu as laid down in the verdict would be nigh impossible to prove blocking the right to bail of an undertrial. More so as the verdict is in direct contrast to a recent, and highly appropriate concern shown by the CJI with regard to the refusal of bail and continued incarceration of undertrials which, more often than not, results in imprisonment beyond the punishment prescribed for a particular offence under the relevant law.

“In my opinion the verdict will lead to a great burden on the already crumbling structure of the criminal justice system in the country resulting in denial of a valuable right to liberty enshrined in the Constitution and upheld continuously by the very protector of the constitutional principles.”

On August 3, a group of up to 17 opposition parties, including the Trinamool Congress (TMC) and the Aam Aadmi Party (AAP), issued a joint statement in which they highlighted their “grave apprehensions” about the long-term repercussions of the Supreme Court’s ruling upholding the PMLA changes.

“We place on record our deep apprehension on the long-term implications of the recent Supreme Court judgment upholding, in entirety, the amendments to the Prevention of Money Laundering Act, 2002 without examining whether some of these amendments could have been enacted by way of the Finance Act. If tomorrow the Supreme Court upholds that the challenged amendments through the Finance Act is bad in law, then the entire exercise would become futile and a loss of judicial time,” the statement said.

“These far-reaching amendments strengthened the hands of a government, indulging in political vendetta of the worst kind, by using these very amended laws relating to money laundering and investigation agencies, to target its political opponents in a mischievous and malicious manner,” the joint  statement by opposition parties said.

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