PMLA judgment: Retd Justice Nageswara Rao says, might have taken a different view

New Delhi: The Prevention of Money Laundering Act (PMLA) case verdict of the Supreme Court issued on 27 July 2022, has since been a topic of much debate as much as the judicial circles and as the political leadership .

While several retired judges and other legal experts have found fault with the virtually summary approval of the free hand given to the Enforcement Directorate (ED) in booking people and arresting them, a retired Supreme Court justice has remarked that left to him, he would have taken a different view of the matter and given a different judgement.

While respectfully stopping short of criticising the judges involved in the judgement, Justice Nageswara Rao said, "At the outset, I must tell you that I am not going to be critical of judges or the philosophy behind the judgements. Left to me, I should be very frank, I might have a taken a different view. I've read the judgement and the criticism to it by various legal scholars and retired judges,, as reported by legal website Livelaw.in.

Justice Rao was speaking at an event a webinar organised by the The Leaflet titled "Life and Liberty: India at 75 years of Independence".

On the Court's finding of Enforcement Case Information Report (ECIR) not being equivalent to the First Information Report (FIR) in the PMLA judgement, the Judge said that when persons are called to question by the Enforcement Directorate, they don't know whether they are accused or witnesses or what is required of them.

"The fundamental criminal jurisprudence is to the effect that a person who is charged of a criminal offence, has to be told about the charge, he should be informed. If the ECIR need not be given, it becomes difficult for a person to defend when she files an application for bail….. There is a finding where ED officers are not police officers also. So, there is a general feeling that there is a setback to personal liberty because of what has been stated in the judgement…..", Livelaw quoted Justice Rao.

The judge drew attention to an earlier judgement of the court in the case of Nikesh Shah, in which the Court had declared Section 45 of the PMLA Act as arbitrary and violative of Articles 14 and 21.

Selective prosecution of dissenter

Justice Rao also cited the experience that sometimes the government selectively prosecutes dissenters in a bid to muzzle or discredit critical voices.

He remarked that the investigative agencies' habit of acting first and building a case later, has resulted in numerous First Information Reports.

"The State's proclivity to act first and make out a case subsequently has increasingly resulted in filing of FIRs and initiation of criminal process, without investigating agencies applying their minds, at times, to even assess whether the alleged act meets the minimum ingredients of an offence under the IPC or other substantive penal acts. Another prominent strategy employed is to selectively prosecute opponents and dissenters, in a bid to muzzle or discredit critical or contrary voices."

Justice Rao also made an observation about sedition charges filed against hundreds of people relying on a database launched by Article14, a research and reportage initiative, which pointed out that there were about 13,000 cases of sedition between 2010-2021. Out of 126 people for whom trials had been concluded in this period, 13 were convicted of charges of sedition, which accounts for 0.1% of accused.