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 the list of predicatory offences and they are not of ‘most heinous’ nature to be weighed as non bailable. Hence the SC considered the section as unconstitutional in November 2017.
The government swiftly acted in response to the judgment and in February 2018 made amendments through an act in parliament in order to further strengthen the non bailable clause. Again, the amendment was brought for judicial review but this time the SC had ruled that the provisions were constitutional. The SC was convinced of the argument made by the government that the money laundering is also a heinous crime considering its implications on the nation’s security and sovereignty.
A more draconian turn
Not the judgment in favor but it is the amendment that had incentivized ED more. To understand this, one has to note the changes in the wordings that the 2018 amendment had made to an already controversial section of 45(1)
Pre amendment,
‘ No person accused of an offence punishable for a term of imprisonment for more than three years shall be released on bail or on his own bond unless ……’
Post amendment,
‘No person accused of an offence under this act shall be released on bail or on his own bond unless ……’
Atleast, to consider non bailable, the pre amendment provision was only covering a list of crimes that has the potential of above three years imprisonment. But the 2018 amendment had removed this restriction, made the provision vaguer thereby bringing any offence under PMLA to be non bailable, irrespective of the heinous-ity of the offense .
Can judiciary do complete justice?
Recently, the CJI D.Y Chandrachud while addressing a congregation of judges in Gujarat, raised his concerns over the reluctancy of the trial courts in granting bail. He emphasized the importance of ‘Bail is rule and jail is exception’ principle. This apprehension among the trial court judges should not be taken lightly as the independence of the grass root judiciary is equally important as it is for the higher courts. The political climate of the country should not interfere in the reasoning and pronouncing the judgments.
“…[PMLA] could not take away the power of courts to grant bail in case of delay in trial” These are the words of the CJI-in-waiting, Justice Sanjiv Khanna during a trial of a PMLA case. If the executive body fails to provide substantial evidence or reasons for the continued custody of the accused, the judiciary has all the power to override the twin provisions of the act and grant bail. It is the right to life that is foremost than a parliament law.
