Thursday, November 23, 2017

Flash - Supreme Court declares PMLA bail provisions unconstitutional

The Supreme Court has today held that Section 45 of the Prevention of Money Laundering Act, 2002, is unconstitutional. While the decision is not yet out here is an excerpt from the news:
A bench led by Justice Rohinton F Nariman struck down Section 45 in the PMLA to the extent that it refuses bail to the accused on the basis of twin conditions. 
The first condition says that no bail can be given without giving the public prosecutor an opportunity to oppose the bail plea. The second condition stipulated that the bail can be given only when the concerned court is prima facie satisfied that the accused is not guilty of the offence alleged against him. 
These two conditions made grant of bail virtually impossible in money laundering cases and the maxim tend to be shifted from “bail is rule and jail an exception” to “jail is rule and bail an exception”.
If the Supreme Court has really done as the news suggests, this is potentially a ground-breaking decision. This Blog had discussed in an earlier series of posts how such reverse-onus clauses in bail provisions are littered across various statutes. The Blog had also argued how their operation renders bail an illusion while drastically curbing the presumption of innocence (for those posts, see herehere, and here). More to follow once the judgment comes out. In the meanwhile, I've copied the list of statutes here that can potentially be affected:
  1. Section 437(1), Cr.P.C. (in cases of death and life imprisonment).
  2. Rule 184 of the erstwhile Defence of India Rules supplementing the Defence of India Act 1971. 
  3. Section 12AA (inserted in 1981), of the Essential Commodities Act, 1955.
  4. States of Punjab and Tripura inserted this provision as Section 439-A to the Cr.P.C. so applicable within their territory, in 1983 and 1993 respectively. This restricted bail to persons accused of certain offences, inter alia Section 121, 124-A IPC.
  5. Section 20(8) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 [TADA].
  6. Section 37 (amended in 1989) of the Narcotic Drugs and Psychotropic Substances Act 1985 [NDPS].
  7. Section 7A (inserted in 1994) of the Anti-Hijacking Act, 1982. 
  8. Section 6A (inserted in 1994) of the Suppression of Unlawful Acts against Safety of Civil Aviation Act 1982. 
  9. Section 21(4) of the Maharashtra Control of Organised Crime Act, 1999.
  10. Section 8 of the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act 2002.
  11. Section 45 of the Prevention of Money Laundering Act, 2002.
  12. Section 51A (inserted in 2002) of the Wildlife Protection Act, 1972.
  13. Section 49(7) of the Prevention of Terrorism Act, 2002 (nearly identical). 
  14. Section 43D (inserted in 2008) of the Unlawful Activities Prevention Act, 1967 [UAPA] (nearly identical).
  15. Section 36AC (inserted in 2008) of the Drugs and Cosmetics Act, 1940.

6 comments:

  1. This comment has been removed by the author.

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    1. Found a copy of the Judgment at:
      http://sci.gov.in/supremecourt/2017/13393/13393_2017_Judgement_23-Nov-2017.pdf

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    2. Thanks! have written a more detailed post.

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  2. The ruling may not affect the run of the mill denials of bail by the police and the lower courts for whom it is still presumption of guilt and jail the rule - not just that but police remand too has become quite routine.

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    1. Absolutely. And the Supreme Court has not helped on that front either with its changing stance on the issue. There are some other entries on the blog that you might find interesting to read on that front.

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  3. This a very helpful blog...keep passing this type information.

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