PMLA: SC reaffirms 'bail is norm' tenet

The quashing by the Supreme Court of Section 45(1) of the Prevention of Money Laundering Act (PMLA), which made getting bail almost impossible for those arrested under the law, is an affirmation of the primacy of fundamental rights and an endorsement of the rule of law. The draconian provision undermined fundamental rights and went against the basic assumptions of the rule of law. That was what the court said, too, by holding that the Section was violative of Article 14 (right to equality) and Article 21 (right to life and liberty). The law had reversed the tenet that no one should be held guilty until proved so. It held everyone guilty until proved innocent. The PMLA has been in force since 2005 and has over time been amended twice. Even offences like those under the Wildlife Protection Act and the Antiquities Act have been brought under its purview. It is in the tradition of the most undemocratic laws in the country.

Section 45(1) of the Act stood the axiom "bail is the norm, jail is the exception" on its head. It prescribes that the public prosecutor must be given an opportunity to oppose the grant of bail and the court must satisfy itself that the accused is not guilty and is unlikely to commit an offence if granted bail. These conditions have ensured that most of those arrested under the law have been denied bail. Only two or three people have got bail in the past 12 years of the operation of the law. That is why the court called the procedure for bail specified under Section 45 "manifestly arbitrary, discriminatory and unjust". The court has also ordered a reassessment of all the cases where the Section has been applied. That would mean freedom for many people languishing in jail for years, and the court has ordered that their cases "should be taken up at the earliest".

It is surprising that such a draconian provision has existed in the statute book so long. Money laundering is a serious crime but a law against it, and in fact all laws against all offences, should be within the framework of the rule of law. No government has the right to violate the citizens' basic rights under the pretext of curbing black money, fighting crimes, or maintaining law and order. These tough laws are often misused. The government is wrong to consider the judgement as a setback to the fight against black money. The fight should be fair and square and worthy of a democracy, and should respect the rights of citizens.

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