SC must review PMLA judgement

The Supreme Court judgement which has upheld the stringent provisions of the Prevention of Money Laundering Act (PMLA), 2002, weakens many rights of citizens and the safeguards provided by law against executive excess. The bench led by Justice A M Khanwilkar has backed the powers of the Enforcement Directorate (ED) under the PMLA, holding that stringent provisions of arrest and attachment of property under the law are constitutional and do not suffer from arbitrariness. Many of the provisions of the PMLA have come under strong criticism for going against the well-accepted principles of rule of law and norms laid down by the court in past judgements. The petitioners had contended that the ED works like a police agency, and should therefore be held to the same standards of safeguards as established by the Code of Criminal Procedure. The court’s judgement shows that it did not accept this view.

There are notable departures from the accepted canons of law in the judgement. It found no fault with Section 24 of the Act which puts the burden of proving innocence on the accused rather than the burden of proving guilt on the investigating agency. This is against the idea of presumption of innocence which forms the basis of criminal law. The court upheld the provision that made statements made before the ED at the time of arrest admissible in a court of law. This runs counter to the principle that no person can be compelled to bear evidence or act as a witness against oneself. The PMLA’s bail provisions are very tough, but the court has upheld them. This does not agree with earlier rulings of the court which took a liberal view of the right to bail. The court also said that it was “not compulsory” for the ED to give a copy of the Enforcement Case Information Report (ECIR), the equivalent of the police FIR, to the accused. Getting a copy of it is considered a normal right of the accused.

The ED is a weapon frequently used by the government against its opponents and critics. The judgement has failed to protect citizens at a time when executive excess using that weapon is often visible. The draconian provisions of the PMLA challenge and override many fundamental rights of citizens, and it is wrong that such provisions, prone to much misuse, are allowed to continue on the statute book. It should be noted that the government told the court that there is no constitutional guarantee for the presumption of innocence until proven guilty. The court agreed with this and said that the “presumption can be interdicted by a law made by Parliament/Legislature”. The judgement raises many concerns and needs to be reviewed by the court.