The Supreme Court granting bail to the Aam Aadmi Party (AAP) leader and Rajya Sabha member Sanjay Singh in the Delhi excise policy scam case as the Enforcement Directorate (ED) was unable to recover material evidence once again points to the urgent need to revisit the draconian provisions that virtually make bail impossible for a person charged under the Prevention of Money Laundering Act (PMLA), 2002.

The law was framed as part of a global effort to check the movement of illegal money that funded terrorist activities, and hence the stringent provisions in the law. The basic premise that rules administration of criminal justice in democracies — the presumption that one is innocent until proven guilty — was dropped while framing the law and the onus was passed on to the accused to convince the court of his innocence if he were to be freed.

The lawmakers who made bail very difficult, however, introduced provisions that made equally difficult the conditions for the officials to arrest persons under the PMLA. Section 19 of the Act says an officer can arrest a person “based on the material in their possession”, providing a reasonable basis to suspect that an individual has committed an offence. This was meant to ensure that there would be no arbitrary use of the power to arrest and that the agency entrusted with the job will do it in the most professional way.

Unfortunately, what we have seen of late is the undermining of every safeguard provided in the law for the citizen. Arrests have been made with no material in possession and people have been made to languish in jails for months and years. The Supreme Court in fact made it clear to the ED before granting bail to the AAP leader that the agency has not been able to recover or trace the route of the money which, it alleged, changed hands. The court also pointed out the suspicious way in which the ED extracted a statement from an approver naming the politician.  

People who handle proceeds of crime must deal with the toughest face of the law but such determination cannot provide the government in power an excuse to hunt down politicians who belong to the Opposition camp. The examples of people who were dumped in jail for long on the basis of unproven charges must open the eyes of the ED and the government on the pitfalls of the abuse of a law which was created for a national cause. The judiciary must keep a close watch on the cases under PMLA since the agency makes abundant use of Section 45 of the law to nullify the fundamental right to liberty guaranteed under Article 21 of the Constitution. It may be remembered that the Supreme Court had struck down the twin conditions for bail under Section 45 but the government restored them by deftly redefining the law. The courts must ask the agencies to do a professional job of recouping proceeds of crime instead of performing a hit job for the government in power.