Making bail impossible

GS paper 2

Syllabus: Structure, organization and functioning of executive and judiciary, issues of money laundering and link with terrorism etc

Source: The Hindu

Directions: These topics are important- PMLA, right to privacy, court’s role in bail etc. Learn the crux of the issue.

Issue:

• SC (In the Puttaswamy Case (9 bench judge), 2017), while upholding the right to privacy, it overruled the decision in ADM Jabalpur v. Shivkant Shukla (1976).
  • • • ADM Jabalpur was a landmark and controversial case in which a 5 bench judge (including P N Bhagawati) ruled that “ a person’s right to not be unlawfully detained (i.e. habeas corpus) can be suspended”.
        • • Bhagwati later in 2011 agreed with the popular opinion that this judgement was short-sighted and apologised.
      • However, the recent decision of SC (in Vijay Madanlal Choudhary v. Union of India) upheld the constitutionality of the Prevention of Money Laundering Act (PMLA), is an injustice to the dictum of “bail and not jail”.

Draconian preconditions for bail in PMLA:

• Onus on accused: To be eligible for bail, the arrested person must persuade the court that he is not guilty of the money laundering offences brought by the Enforcement Directorate (ED).
• Grounds for arrest: There is no definition of what qualifies as grounds for arrest and how detailed such grounds need to be.
• Confessional statement: The judgment considers the confessional statement to be admissible evidence, such evidence can be presented to the judge at a bail hearing as well.
• NIA v. Zahoor Watali (2019): For considering bail under UAPA, the court only has to see whether a prima facie case against the accused is made out.

Issues with the Vijay Madanlal Choudhary v. Union of India judgement:

• Crime of Money laundering under serious offences: The court overturned its decision in Nikesh Tarachand Shah v. Union of India (2017) that had directed treating the offence of ‘money laundering’ as less heinous and therefore differently a crime from ‘terrorism’ under the Terrorist and Disruptive Activities (Prevention) Act (TADA).
• Money laundering covers other offences: The court ignored the fact that under the PMLA, money laundering also covers monies associated with offences relating to infringement of copyrights and trademarks, arts and antiquities, securities, information technology, companies, and air and water pollution.
• Enforcement Case Information Report (ECIR): The court also declared that the ED does not need to share the Enforcement Case Information Report (ECIR) with the accused.

• • • • The same notion of secrecy is not applicable to equivalent documents (FIRs) for agencies like the police and the Central Bureau of Investigation.

What is Bail:

• The CrPC does not define the word bail but only categories offences under the Indian Penal Code as ‘bailable’ and ‘non-bailable’.
• The CrPC empowers magistrates to grant bail for bailable offences as a matter of right.
• This would involve release on furnishing a bail bond, without or without security.
• In the case of Non-bailable offences, a magistrate would determine if the accused is fit to be released on bail.

Insta Links:

PMLA

Mains Link :

This article is linked to as much internal security as to polity. Do remember some provisions of PMLA and its mandate.

Q. India’s proximity to two of the world’s biggest illicit opium-growing states has enhanced her internal security concerns. Explain the linkages between drug trafficking and other illicit activities such as gunrunning, money laundering and human trafficking. What counter-measures should be taken to prevent the same? (UPSC 2018)

Prelims link: