I might have taken a different view: Justice L. Nageswara Rao on the Supreme Court upholding the constitutionality of PMLA

Answering questions from the audience at the webinar hosted by The Leaflet on the occasion of 75th Independence Day, Justice L. Nageswara Rao acknowledged that there is a general feeling that the PMLA judgment is a setback to personal liberty. 

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RETIRED Supreme Court judge, Justice L. Nageswara Rao said on Monday that he might have taken a different view had he decided the PMLA case, in which the Supreme Court had upheld the constitutionality of various contested provisions of the Prevention of Money Laundering Act, 2002 ('PMLA'), on July 27.

Justice Rao, who delivered a lecture at the webinar on 'Life and Liberty: India at 75 years of Independence', hosted by The Leaflet on August 15, made this observation during the question and answer ('Q&A') session, which followed his lecture. The Q&A session was moderated by Pamela Philipose, journalist and a member of The Leaflet's editorial board.

Referring to Vijay Madanlal Choudhary & Ors. versus Union of India & Ors. (2022), on which his views were sought by members of the audience, Justice Rao said: "I have read the judgment, and I have also read the criticism by several legal scholars and retired judges about the viewpoint of the Supreme Court in the said judgment."

Justice Rao clarified, however, that he would not be critical of the judges who have written the judgment or the philosophy on which the judgment is based.

Justice Rao explained that the aspect pertaining to liberty under the PMLA was mainly related to the Enforcement Case Information Report ('ECIR'), which is equivalent to a First Information Report. He told the audience that the issue is that the ECIR is not given to the persons when they are called to question by the Enforcement Directorate ('ED'). "They really do not know whether they are accused or witnesses, and what it is that is sought from them," he said.

In Vijay Madanlal Chaudhary, a Supreme Court bench comprising Justices A.M. Khanwilkar, Dinesh Maheshwari and C.T. Ravikumar held that all of the PMLA's provisions, including the ED's power of search, seizure and arrest, have a reasonable nexus with the objects sought to be achieved, that is, preventing and regulating money-laundering effectively.

Justice Rao acknowledged that there is a general feeling that the PMLA judgment is a setback to personal liberty. However, he went on to say, "you will come across a number of judgments where the court has been saying that liberty is to be protected. In December 2021, there was a case that came up before the present Chief Justice of India, where he made a comment that people are unnecessarily dragged into cases in PMLA by the ED. Then he again mentioned that the process itself is becoming a punishment."

On being asked whether the concept of liberty has undergone a change after the judgment, he said, "I am afraid not. Concept of liberty, which has been evolving over the past 75 years, is clearly to the effect that courts are in favour of protecting the personal liberty of an individual."

Justice Rao was then asked about the need for institutional reforms on bail in the lower courts. He clarified that there is no ambiguity in law in this regard. "It's only [in] the implementation of the law laid down by the Supreme Court that the difficulty arises … To my individual perception, the trial court judges are working under tremendous pressure," he said.

He took an example where grave offences are committed by a politician or there is a sensational case before a lower court judge, and stated, "… the press takes over and there is some sort of a public opinion that is built up even before the district judge or the Magistrate takes over the case. And the judge is not really sure as to how he should proceed because he is also a human being. There is already a trial that is going on in public. He does not know whether, if he grants a bail, what is going to be done. If he does not grant a bail, there is going to be a problem. So, this is something which I have seen personally…there is a lurking fear in the minds of judges when they deal with the applications of bail, especially in sensational cases,".

Justice Rao referred to another Supreme Court judgment from last month, in Satender Kumar Antil versus Central Bureau of Investigation & Anr. (2022), in which the Court recommended to the Parliament to enact a Bail Act.

On being asked to comment on lawyer and politician Kapil Sibal's statement from last week that there is no hope left in the judiciary, Justice Rao said, "Sibal has his own views with which I do not agree. Judiciary is an institution on which the members of public and citizenry have some hope in the checks and balances. This is really very important for the smooth functioning of the democracy. Judiciary is a very important institution to check any arbitrary actions of the executive."

Justice Rao stated that in the absence of public confidence in the institution, there will be no check on the excesses committed by the Executive.

He concluded by stating that there is no point in losing hope in courts since it was courts that took up causes of the underprivileged and those from the disadvantaged sections of the society. He told the audience: "[It is] because of the interference of the court that people have got food, shelter…and their suffering has been taken note of…We just have to put behind any judgment or feeling of disappointment, and hope that the Supreme Court continues to do the good work it has been doing for the past 75 years."