It is disturbing that a three-judge bench of the Supreme Court led by Justice A M Khanwilkar has upheld the constitutionality of the Prevention of Money Laundering Act, 2002 — it is a law that upends first principles in criminal law, including the presumption of innocence of the accused. Under the PMLA, statements made before the officers of the Enforcement Directorate are admissible in court and bail provisions place a reverse burden of proof on the accused, requiring them to show lack of guilt even before the trial commences. The court’s let-down is all the more stark given that this ruling comes just days after it gave Mohammed Zubair bail and underlined that “arrest is not meant to be and must not be used as a punitive tool because it results in one of the gravest possible consequences emanating from criminal law; the loss of personal liberty”.
Parliament has the power to bring in restrictive laws, like anti-terror legislation, to deal with exceptional circumstances. It is disquieting that the SC ruling extends this exceptionalism to money laundering. In giving a free-pass to a law enforcement agency, the SC has lowered the bar drastically for the state to encroach on individuals’ fundamental rights. The government, led by Solicitor General Tushar Mehta, had argued that there is no constitutional guarantee for the presumption of innocence until proven guilty. Worryingly, the Court, which is the custodian of the constitutional letter and spirit, its check and balance, didn’t just agree with the executive — it also added that Parliament can interdict these basic tenets with a law. This is reminiscent of Emergency-era courtroom debates on whether Parliament can interdict the right to life without due process. Several judges agreed, with only Justice H R Khanna remaining steadfast to the cardinal principle in a constitutional democracy — that the rule of law is omnipresent, and cannot be written away by law.
