Vijay Madanlal Choudhary v Union, 2022 Judgment: ADM Jabalpur Redux?
The legacy of ADM Jabalpur, 1976 still looms large on Indian jurisprudence. Famously, advocate Ram Jethmalani said in an interview that the day this judgment came he packed his bags and left India. This was a moment in the history of the Indian legal system when significant sections of the bar and bench, as also the public at large, felt that the Supreme Court of India, the custodian of the law and self-described sentinel on the qui vive of citizens' fundamental rights had finally capitulated to the executive and lost the desire to retain its autonomy of will and action. The message that was sent out to the citizenry was that they could no longer rely on the Supreme Court to be a bulwark against arbitrary and vengeful state action. It was feared that the rule of law was on its way to being replaced by the rule of persons; in particular, the rule of a person who happened to be the prime minister of India. Any opposition to the policies of the government of the day could be bulldozed through trumped-up charges, and legitimized by casting aspersions and vague claims of threats to the security of the state. ADM Jabalpur seemed to suggest that the supreme court was now acquiesced to the role of a silent bystander and letting the executive have its way.
ADM Jabalpur would not be overruled for the next forty years. Though Ram Jethmalani did eventually return, and the apex court did try to wipe off the ignominy by laying down in Maneka Gandhi,1978 that a citizen could not be deprived of his/her right to personal liberty through any procedure or law unless it passed the muster of a golden triangle of articles 21, 19 and 14. Concepts of personal liberty and protection from the arbitrary coercive power of the state were further strengthened by Puttuswamy v Union of India, 2018, which gave the right to privacy an aura of dignity and constitutional protection by equating it with the right to life and liberty enshrined in the article 21 of the constitution.
However, these hopes proved to be premature and short-lived. Through its recent judgment in Vijay Mohanlal Choudhary v Union of India, 2022, the supreme court has once again resuscitated the specter of ADM Jabalpur, long thought to be dead and buried.
PMLA act is considered problematic mainly for two reasons- first, the definition of the offense of money laundering in section 3 is vague, wide, and ambiguous enough to make arbitrary and vindictive state action possible and, second, section 45 of the act, that makes it extremely difficult for the accused person to obtain a bail.
In rejecting the constitutional challenges to the PMLA act, the supreme court had to overrule the Nikesh Tarachand Shah judgment that had earlier struck down section 45 (pertaining to bail) on the ground that stringent criteria deployed to tackle terrorism through acts like TADA could not be used for the offense of money laundering as this crime is neither as grave a threat to the national security nor as heinous.
Dismissing this line of argument, the Supreme Court held in Vijay Madanlal Choudhary that in the changing international environment following the 9/11 attack, the threat of money has to be seen in a new light. In facilitating monetary resources to terrorist attacks, the crime of money laundering plays a crucial role in keeping terror organizations alive and kicking. Therefore, it is in the public interest to treat the offense of money laundering on the same footing as a terrorist attack.
Be that as it may, the threat of arbitrary state powers cannot be ignored either. Section 3 of the act makes it possible for the investigating agencies to name a person as the accused for merely processing, possessing, or handling laundered money directly or indirectly. Given the fast pace at which money travels, it is impossible to tell whether the person accused is actually guilty or merely an unfortunate victim who happened to be hobnobbing with the wrong kind of people.
What makes the predicament of the accused person direr is the fact that he/she has no way to know the exact nature of the crime for which he or she has been accused by the prosecution. In the usual course of a criminal investigation, it is a constitutional requirement for the investigating agency to supply a copy of the FIR (first information report) to the accused, so as to enable him to appreciate the exact nature of the charges against him and prepare a defense. However, in a case brought to the court through the PMLA act usual provisions of the CrPC (Code for Criminal Procedure) do not apply. There is no formal FIR; instead what we have is an ECIR (enforcement case information report). The origin of this modality is not clear as the PMLA act itself makes no reference to the definition or nature of an ECIR. For all practical purposes, this is a document internal to the Enforcement Directive that is neither shared with nor revealed to the accused. The ECIR owes its origin to the ED manual, however, its contents are not available to the public at large. In the present case, the Supreme Court held that since the ED manual is a document internal to the ED, common people and even the accused and his advocate have no business examining its contents. The judgment equates the ECIR to FIR, but would not allow the defense to look at it, nor did it clarify why it should remain a secretive document.
Given these provisions and the judgment of the court, the accused now faces the predicament of having to defend himself without learning the nature of the charges against him. Contrary to the usual presumptions of criminal jurisprudence, section 45 of the act treats the accused as guilty till proven otherwise. Bail cannot be granted unless the public prosecutor is given an opportunity to oppose the application for release. And if he prefers to oppose the bail application, the court would not grant bail to the accused unless he is able to supply reasonable grounds for believing that he is not guilty of the offense. These provisions fly in the face of criminal jurisprudence that holds an accused to be innocent till there is a reasonable ground for believing him to be guilty.
In general, provisions such as these make it extremely difficult for an accused to get bail. It would take a lawyer of extraordinary skill to prove that his client is not guilty without even knowing the nature of the charges against him. Not supplying the FIR equivalent ECIR to the accused means that during the initial interrogation, often it is impossible for him to know even whether he is being questioned as an accused or witness. This makes it possible for the ED to make him languish in jail for months and years. According to article 22 (2) of our constitution, it is a person’s fundamental right to be informed of the grounds for his/her arrest. Over this, the court said that the accused shall be informed of the grounds for his arrest at the time he is detained, but there is no need to supply him a copy of ECIR, or an elaborate document stating the charges framed against him.
The implications of these observations made by the supreme court are ominous. Given the vague and wide definition of section 3 of the PMLA, all that the prosecution needs to tell the accused at the time of arrest is that he/she is being detained for committing a crime defined by the said section. As for the details of accusations, he/she is to remain in the dark till the trial begins. The argument advanced by the Supreme Court for taking such a stand is that money being an easily transferable entity, the purpose of the prosecution would be defeated if the accused person was told in advance about the property that has implicated him, for she/he would feel inclined to immediately park it elsewhere. However, this line of reasoning does not seem too convincing as a person being held in the custody of the mighty ED would hardly have the resources or clout to get rid of his ill-begotten wealth while the investigation is on.
It is nobody’s case that the state should go easy on perpetrators of heinous crimes. However, the law is nothing if it cannot check the arbitrary exercise of power by state actors, which the PMLA seems to facilitate. It has been argued by some that even without these stringent provisions the ED has enough clout at its disposal to prosecute the guilty. Some may argue that citizens ought to have faith in the efficiency and integrity of state agencies. However, laws cannot be made on the presumption that state actors would act in good faith. One may repose faith in the government of the day, but tomorrow someone else may be in power. What is most disturbing about the whole affair is that none of the political parties seems willing to take a principled stand on this issue. There appears to be a tacit consensus across party lines that the state ought to reserve some autocratic powers for itself. Like the tip of a gun, the law is nobody’s permanent ally. PMLA 2002, a law drafted by the Congress regime in 2002 is today being defended vociferously by the BJP. And, it would likely be defended by the next government too.
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| From ADM Jabalpur to PMLA (Prevention of Money Laundering Act, 2002) |
Great job...
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