Restoring a critical balance

The order by a bench of justices AS Oka and AG Masih assumed importance for two unique reasons. One, the Court acknowledged that there was a prima facie case against Balaji, but decided that the prolonged detention without a foreseeable end to the trial tipped the scales in favour of his release. Two, the bench also sent a signal to all constitutional courts (such as the high courts) by ruling that they should not allow indefinite pretrial detention under the anti-money laundering law. “The constitutional courts cannot allow provisions like Section 45(1)(ii) to become instruments in the hands of the ED to continue incarceration for a long time when there is no possibility of the trial concluding within a reasonable time,” the judges declared. Section 45 of PMLA prescribes a high threshold requiring courts to conclude that the accused is not guilty of the offence and is not likely to commit the offence while on bail.

The bench built on a rationale that was at the heart of string of recent top court orders freeing top politicians such as Aam Aadmi Party (AAP) chief Arvind Kejriwal, former deputy chief minister of Delhi Manish Sisodia, AAP parliamentarian Sanjay Singh and Bharat Rashtra Samithi leader K Kavitha — all of whom were arraigned as accused by the ED in the Delhi excise policy case.

The backdrop to this is clear. There appears to be growing judicial concern that the statute is open to being weaponised in a way that violates fundamental rights under Article 21 of the Constitution, which guarantees the right to life and personal liberty. As a response, in bail order after bail order involving high-profile politicians, recent judgments have underscored the importance of personal liberty, including bail as a constitutional right, even in cases involving statutory restrictions. They have also emphasised the primacy of individual liberty, asserting that courts must ensure liberty, not incarceration, is the default position.

All eyes are now on the top court, which is expected to soon decide when to hear petitions challenging the validity of some controversial PMLA provisions, particularly those related to summons, arrest, search and seizure. Under scrutiny will also be the top court’s 2022 Vijay Madanlal Choudhary verdict that upheld several provisions of PMLA with far-reaching impact.

As this newspaper has noted before, corruption cannot be tolerated in public life. But at the same time, stringent laws cannot run afoul of constitutional protections or make the process the punishment. PMLA, first enacted in July 2005 and then progressively made harsher between 2009 and 2023, is the most prominent example of this disturbing trend, which has also sparked allegations that Opposition politicians are being targeted. Restoring this balance — as demanded by the Constitution — and dispelling the fog of allegations is critical for India’s democratic setup.

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