Since 2014, the Prevention of Money Laundering Act and the functioning of the Enforcement Directorate have been widely criticised. Given the number of cases registered by the ED and the consequent punishment meted out, this criticism appears valid. No law has ever been doubted for its misuse in the past 76 years like the PMLA. Even if the courts reveal the invalidity of the law or its provisions, the system of amending it as required by the force of the majority is detrimental to the Constitution and democracy. Any law misused as a weapon is fatal to equality, freedom, and the Constitution. The basic principle of the law as “innocent until proven guilty” has been replaced by the practice of “guilty until proven innocent”. The segregation of accused versus innocent seems to be based only on political alignment and not on legal provisions, hence the whole process remains political and not legal.
The increase in guidelines, comments and reviews by the courts on the ED and PMLA laws raises an alarm over the abuse of law. Former Supreme Court Justice Deepak Gupta in his lecture on Fundamental Rights two months ago asserted that some of the judgments were an attack on liberty and freedom. He recalled Justice Krishna Iyer's observation that bail is the rule and jail is an exception. Justice Gupta commented on the merits of two Supreme Court judgments, Zahur Ahmad Shah and Vijay Madanlal Chaudhary, under the UAPA and the PMLA Act respectively. Justice Gupta, while setting out the conflicting facts regarding ED, referred to the fact that the reply given to the ED officers could be used as evidence as they were not police officers, but on the other hand they were given all the powers of the police. Justice Gupta further asked, while the burden of proving the crime lies with the investigating agency, while there is no requirement to prove anything in the PMLA, why is the case not settled in two or three months? Justice Gupta is of the opinion that if the case is tried for 6-8 years, then the accused is definitely entitled to bail and no one's fundamental rights can be taken away under any law.
Previous governments were criticised by those today in power for the Emergency and President’s rule imposed on numerous occasions. Now the present central government appears to have overtaken the previous governments on this front within a short span of nine and a half years. The only difference between the previous and the present governments is that the incumbent has not declared Emergency formally. President's rule imposed by this government in Uttarakhand and Arunachal Pradesh in March 2016 and January 2016 respectively was struck down by the courts. There has been a 95% increase in registration of offences under PMLA after 2014, but the conviction rate has not changed. Moreover, the trials are delayed. When the Supreme Court ruled in favour of the Delhi government recently, the central government amended the law in its favour. During the MVA regime, the appointments of MLCs were kept in abeyance indefinitely by the Governor. After a verdict on the power struggle in Maharashtra due to inaction by the Speaker, the second round of litigation arose which is sub judice in a Writ Jurisdiction. Identical methods are used for splits in case of Shiv Sena and NCP. While there is inaction by the Constitutional authorities indefinitely, we call ourselves the world’s largest and an ideal democracy. We have witnessed many instances of Constitutional institutions and authorities flaunting their loyalty to the rulers rather than to the Constitution. The central government was reluctant to retain the ED chief. The Chief Justice of the Supreme Court is excluded from the selection committee for selecting the chairman of the Election Commission despite the court's verdict.
There can be no greater injustice than not to deliver justice when one is empowered to do justice. For the last two years, elections to local bodies have been indefinitely postponed without citing any valid reason. The Election Commission is a Constitutional body, but is still unable to explain the reasons for withholding Lok Sabha by-elections. Elections to Chandrapur and Pune Lok Sabha seats that fell vacant due to the death of two Parliamentarians were not held despite the remaining term of Parliament being more than one year. An argument was made on behalf of the then BJP MLAs for revoking their one-year suspension from the state Assembly during the MVA regime. Among the reasons considered by the Supreme Court for revoking their suspension was that the representation of any constituency cannot be left vacant for more than six months. The caste validity of the MPs of Solapur and Amravati is not yet decided although their tenure is nearing an end. The then Union Law and Justice Minister Kiren Rijiju openly called some retired judges anti-India while criticising the existing judicial system.
A new practice of passing laws without any discussions has emerged in Parliament, where laws are enacted on the strength of majority and not through debates and consensus in the legislature. Renaming or modifying the titles of statutes from the colonial era won't meet the ends of justice. Laws and provisions need to be interpreted in a logical way. Controversial raids by various investigative agencies on journalists and news media definitely raise questions about an opaque and impartial investigation.
Prateek Rajurkar is a practising lawyer at the Bombay High Court, Nagpur Bench. Views are personal
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