Bail and arrest conundrums in PMLA that need resolution

In the labyrinth of legal topics, few elicit as much debate as the jurisprudence surrounding bail. “Bail, not jail” is not merely a catchphrase but central to Indian constitutional ethos founded on personal liberty. The presumption of innocence is a cornerstone of our criminal justice system. Its disconcerting dilution in certain classes, especially PMLA scheduled offenses, imposes a serious fetter on liberty.

Bail jurisprudence in such special statutes reflects the ongoing struggle to balance the imperatives of law enforcement with the protection of individual liberties. While its genesis lay in the original global clarion call by the UN General Assembly in 1990 in relation to international narcotics and terrorist induced money trails, Parliament’s consequential PMLA enactment, and, more importantly, its several amendments, have caricatured it by periodically adding almost 20 categories of offenses in its several schedules: from violations of IPC like cheating and forgery to those of Child Labour act, to Emigration, Passport and Foreigners Act violations, to Sebi Act, to Bonded Labor Abolition Act to Juvenile Justice Act and so on. Such humongous expansion and the consequential application of anti-bail provisions of PMLA to the ordinary legal system, has made the exception the norm and trespassed the gravely invasive reversed burdens of proof into enormously expanded sectors, never within the ken of those who designed such laws globally.

Secondly, the shift away from the foundational paradigm of the triple test (the traditional guiding polestar of  bail jurisprudence), is, at its core, illogical. The triple test—no flight risk, no evidence tampering and availability for questioning at reasonable intervals— has itself, uniquely in India, been beset by seemingly irrelevant legal interpolations. Why, for example, in normal non PMLA cases, should an accused, if found to 100% satisfy the triple test, be subjected to a fourth one, viz. “ gravity of the offense”. Barring a small, easily identifiable class of heinous offenses—child abuse and rape etc— on what rational basis can a judge, once convinced that the accused satisfies the triple test, deny bail on the basis of the “gravity” test ? That has classically been a trial stage test only. It cannot substitute for a bail test once the triple test is found to be satisfied. Lack of clarity in several judicial formulations on this theme necessitates an early constitution bench of five judges.

Importantly, there is hardly any legitimate policing or investigative object that cannot be achieved by increasing use of GPS enabled bracelets/ anklets, which current technology allows to be finely calibrated to specified territorial limits like the confines of a flat, bungalow, locality, sub-division, city or district. Increasing its use would decongest our prisons, elevate the presumption of innocence partially to where it belongs and reconcile the excessively long trial periods which are the bane of the Indian criminal justice system with the presumption of innocence unless convicted.

Furthermore, though PMLA and other similar statutes statutorily modify the common law triple test, numerous judgements under PMLA stipulate that the s 45 anti bail test of PMLA does not (and cannot) require a finding of guilt at the bail stage, contrary to what a literal and pedantic reading of the section may suggest. The court may then look at some prima facie guilt factors at bail stage in PMLA but that scrutiny necessarily has to be of a much more pro accused, liberal test than the scrutiny of a convict who seeks suspension of sentence post conviction under section 319, while his appeal against conviction is pending.

Fifthly, conflating the power of arrest with the necessity and urgency to arrest is conceptually flawed but repeatedly resorted to in contemporary times. How can the section 19 test of “materials’ leading to formation of “belief” necessitating “arrest’ be applied against accused 18 to 24 months after start of investigation, in many cases long after repeated interrogations under section 50, in many others after no interrogation under section 50. Arrest after such delays by the ED, including many cases where the predicate offense investigating agency has never ever thought it fit to arrest, raises serious questions of violations of the section 19 mandate of PMLA. It is usually forgotten that the validity of the stringent anti bail section 45 PMLA was upheld in Vijay Madanlal while specifically holding that the high and difficult threshold for arrest required to be met by the prosecutor under section 19 is a sufficient safeguard against the draconian rigors of section 45. In the practical scenario, except for those who refuse to smell the coffee, the invasive prejudice of section 45 is applied by agency without the pro accused palliative/protection of Section 19.

Lastly, even assuming the validity of section 50 of the PMLA act which, by allowing full admissibility of statements of a suspect/accused made to the investigative agency, clearly nullifies the constitutional right against self-incrimination (called the the right to remain silent), what is galling is the repeated reference in the grounds of arrest to alleged non-cooperation of the accused during questioning. Does non admission of guilt constitute non-cooperation and in turn sufficient grounds of arrest? This violates another constitutional protection of the right to remain silent. Despite this being debunked several times by the SC (eg in Santosh and Bansal), this approach has been repeated without fear of consequence and with monotonous regularity and obstinacy.

Clearly, a comprehensive re-examination of the PMLA’s provisions and, more importantly, sensitizing the ED to established concerns of liberty and due process, is vital. As we traverse this intricate legal terrain, citizens must remain vigilant with regard to their own rights in safeguarding fundamental rights and ensuring a fair and just society because, as Kahlil Gibran admonished, “Life without liberty is like a body without spirit”.