The principle of ‘Bail is the rule and Jail is an exception’ was established by the Supreme Court in its landmark judgment in 1977. The recent series of arrests by the ED and followed by the indefinite custody of the accused has made ‘Jail as the rule’. But what really has pushed the judiciary to compromise its due process of law, is the law itself. The controversial provisions of Prevention of Money Laundering Act (PMLA), through which the ED draws its power of prolonged custody has already undergone a roller coaster ride. The contentious provision of PMLA, section 45, which was earlier struck down as unconstitutional was later upheld by the SC. What does Sec 45 of PMLA says, what amendments did the government brought in in PMLA by 2018, What made SC to change its stance on the constitutionality of the provisions, How the judiciary reacts to the current developments in the light of the modus operandi of the ED. Traverse through this article for the answers. The Twin conditions For an alleged offender to be granted with a bail, has to undergo two-step process which is prescribed in Section 45(1) of the PMLA. Firstly, the public prosecutor should be given an opportunity to oppose the bail application and secondly the court has to be satisfied on reasonable grounds that the person may not be guilty and also may not commit any offence while on bail. It was these provisions that the SC had held as unconstitutional earlier in Nikesh Tarachand vs Union of India case in November 2017. Why SC changed its stance In order to understand why SC has changed its stance, it is essential for us to know how the SC had reasoned the twin condition of the act previously. It compared these provisions with the twin conditions of erstwhile TADA, where SC had upheld the condition as constitutional considering the ‘most heinous’ nature of the crimes that TADA deals with. The nature of crime was thus weighed in to examine the non bailable clauses. Whereas in PMLA, the wordings of the section 45(1) consider only……
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