SC no to stringent PMLA provision

Satya Prakash

Tribune News Service

New Delhi, November 23

In a setback to the Union Government, the Supreme Court today struck down as unconstitutional a stringent provision of the Prevention of Money Laundering Act, 2002, that virtually overturned the legal maxim “bail is rule and jail an exception”. A Bench led by Justice Rohinton F Nariman struck down Section 45(1) of the PMLA to the extent it said “jail is rule and bail an exception”. 

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Section 45(1) imposed two stringent conditions for grant of bail in offences punishable with a jail term of more than three years under Part A of the Schedule. It required that the public prosecutor be given an opportunity to oppose any application for release on bail, that the court must be satisfied that there were reasonable grounds for believing the accused was not guilty and that he was not likely to commit an offence while on bail.

The Bench said the conditions for bail under Section 45(1) were arbitrary as these violated the accused’s right to equality and right to life and liberty, virtually making it impossible to get bail.

Terming it “manifestly arbitrary, discriminatory and unjust” for making the bail procedure “harsh, burdensome, wrongful and discriminatory”, the court struck it down on the ground that it provided for “a procedure which is not fair or just and would, thus, violate both Articles 14 (right to equality) and 21 (right to life and liberty).

“In fact, the presumption of innocence, which is attached to any person being prosecuted of an offence, is inverted by the conditions specified in Section 45…,” the Bench said, declaring it unconstitutional.

The top court set aside all orders denying bail to accused in various cases that relied on the conditions prescribed in the Section 45(1) of PMLA.

It directed trial courts to hear all such bail matters afresh and decide these at the earliest without considering the conditions under the Section 45(1), that have been declared unconstitutional.

“Considering that persons are languishing in jail and that personal liberty is involved, all these matters are to be taken up at the earliest by the respective courts for fresh decision,” it directed. Passed by Parliament in 2002, the Act came into force on July 1, 2005. 

The verdict comes as a setback to the government which had defended the provision, contending it was an effective tool to deal with the black money menace. The order came on petitions challenging the validity of Section 45 that made bail an exception.