Making bail impossible

Source: The post is based on an article “Making bail impossible” published in “The Hindu” on 22^nd August 2022.

Syllabus: GS 2 Important Provisions of the Constitution of India

Relevance: Fundamental Rights and the Bail

News: The ruling of ADM Jabalpur v. Shivkant Shukla Case (1976) was overruled by the Supreme Court(SC) while upholding the right to privacy. However, in the recent case of Vijay Madanlal Choudhary v. Union of India, SC upheld the constitutionality of Section 45 of the Prevention of Money Laundering Act (PMLA). It has reactivated the ADM Jabalpur case ruling.

What are the Draconian preconditions for bail under Section 45 of the PMLA?

Section 45 mandates that in order 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). The onus is on the accused to prove the allegations wrong. If he cannot do this, he will continue in jail.

What is the Supreme Court ruling?

The court overturned its decision in Nikesh Tarachand Shah v. Union of India (2017). In the 2017 case, SC directed treating the offense of ‘money laundering’ as less heinous and differently a crime from ‘terrorism’ under the Terrorist and Disruptive Activities (Prevention) Act (TADA).

In the present case, the court stated that the offense of money laundering was as heinous as a terrorist act and as great a danger to the sovereignty and integrity of our country.

The court also declared that the ED does not need to share the Enforcement Case Information Report (ECIR) with the accused.

According to the court, the fundamental rights of the accused are satisfied if he is informed of the grounds of arrest at the time of the arrest.

What are the issues in the ruling as per the author advocate, Prateek Chadha?

The court ignored the fact that under the PMLA, money laundering also covers minor offences relating to infringement of copyrights and trademarks, arts and antiquities, securities, information technology, companies, and air and water pollution.

Unlike the ECIR, the police and the Central Bureau of Investigation are allowed to share the content of the FIR with the accused.

With respect to informing the grounds for arrest at the time of arrest, there is no definition of what qualifies as grounds for arrest and how detailed such grounds need to be.

What will be the consequences of the SC’s ruling?

Rendering bail impossible: The ruling has judicially cremated the old principle of bail being the norm and jail the exception. It puts the onus on an arrested person to prove that he has not committed the offence that he stands accused of, in order to get bail. No accused will ever be able to prove this if he does not even know what the ECIR contains.

The SC’s decision in NIA v. Zahoor Watali (2019), further compounds the problem, in which the court held that the court cannot enter into an appreciation of evidence at the stage of bail. The judge has to see whether a prima facie case against the accused is made out. This creates a problem because prima facie, the prosecution’s version is sufficient.