BY UPHOLDING PMLA, SC PUTS ITS STAMP ON KAFKA’S LAW
Pratap Bhanu Mehta
We should be grateful that the Supreme Court of India has in Vijay Madanlal Choudhary and Ors versus Union of India, which challenged the constitutionality of certain provisions of the PMLA (Prevention of Money Laundering Act), laid bare the true character of the Indian state.
Justices A M Khanwilkar, Dinesh Maheshwari and C T Ravikumar have once again demonstrated that the only stare decisis that now matters in the Supreme Court is that it will be even more executive minded than the executive. Rather than being the guardian of rights, the Supreme Court is now a significant threat to it. This is a depressing predictability that the Court brings to Indian jurisprudence.
The PMLA was introduced in 2002, ostensibly to tackle the problem of money laundering. It has been subject to several amendments. Money laundering has become a matter of international concern and India has undertaken several international commitments in this regard. The Court has ruled that various provisions of this Act that had been challenged are indeed constitutional. To see what is at stake in this case, it is important not just to pay attention to the details of the Act but to look at the big picture of the law it conveys.
So imagine a law that is Kafkaesque in its opacity. An investigation commences against you. Some vague ground of it is shared with you, but you are completely in the dark about the Enforcement Case Report (the analogue of an FIR). Or, you are summoned and you do not even know if you are being summoned as a witness or as an accused. Nor are the full grounds of arrest shared with you. Now imagine further that you apply for bail. You are considered such a threat to the state that bail cannot be granted without hearing the prosecution and you are required to prove your innocence to get bail. Now further imagine that the definition of crime under this Act is almost infinitely elastic — what counts as money laundering crimes include everything in the kitchen sink. The sovereign has immense latitude to define what counts as the relevant crime. It can also in a classic instance of rule by law change the presumption of innocence.
Now imagine this law is a complete code in its own right: The list of crimes included overrides similar crimes in other parts of the law. The code has an exceptional procedure of its own that can trump the safeguards of the Criminal Code of Procedure. Now imagine further that the punishments under this law may potentially be excessively punitive, in disproportion to the crime. Imagine further that you have to prove your innocence. Imagine that the process is the punishment, where your assets can be seized, your life turned upside down, till the proceedings are complete. In theory, the law provides safeguards against attaching properties, but those safeguards are weak and do not allow for even reasonable exceptions that might be necessary for your dignity or continuing with your business or livelihood. Imagine that mere possession of the proceeds of a crime, without any surrounding consideration of how you came to be in possession of the proceeds, makes it an offence. Imagine further that the state officials you are dealing with are not classed as police. But they, in some respects, have even more power than the police. You see it cannot be a police state if the police are not the ones harassing you.
Now imagine even further that the law itself has been enacted by dubious means. We do not determine whether the parliamentary procedure under which the law was enacted was itself proper. The subterfuge of a Money Bill was used. The law may have been illegally enacted but we let it operate and defer any discussion of that. What is the Constitution in the face of money laundering? Imagine further that the justification of the law is itself not based on rigorous analysis. It is a product of what might be called mood affiliation in two senses. Money laundering is a crime of the utmost gravity. Like terrorism, it requires the creation of a state of exception, but now the state of exception has been made the new normal. There is no consideration of what makes for an effective fight against money laundering. As it happens, the conviction rate under this law is very low, less than 0.5 per cent, but we let thousands of cases be registered, people arrested, and lives turned upside down. In the context of a low conviction rate, the argument that the conditions of bail should be more stringent seems even more like, “we let the process punish you”.
You don’t have to imagine any of this. This is the reality of PMLA.
Now there are two political contexts where one might cut the Court some slack — it is merely parroting the zeitgeist. First, the tragedy of this law is that all parties are complicit in producing it. No political party in power seems to want to relinquish arbitrary powers of the state. The use of the ED, particularly against political opponents, has risen exponentially under this government, but the legal foundations of this were laid by or not challenged by the previous government. What makes the public cynical about the law is the fact that top lawyers who eloquently argue for civil liberties in Court easily give their seal of approval to legislation that threatens basic liberties when their party is in power. The second is the international context. Post 9/11, there was concern with terrorist financing and arguably many international treaties actually weakened, rather than strengthened, individual rights protections. The goal of international treaties is laudable. But the rhetoric of international treaties is often used to override domestic rights safeguards. The state argued less on Indian constitutional law and more on the rhetoric of international obligations. It would have been wonderful if the concern shown for international obligations also extended to more progressive aspects of international law. The worse thing that happens to law is when it becomes encased in a rhetoric of war, and judges and lawyers act as if defending draconian laws was an act of chivalry on behalf of the nation. All fine distinctions and caution are thrown to the wind.
The Chief Justice is constantly arguing for the value of dissent, complaining of media trials and social media attempts to defame the judiciary. He is absolutely right. Our Supreme Court is a marvel only anti-social elements would defame. Kafka’s novel The Trial is considered a masterpiece of literature. So should the judgment in Vijay Madanlal Choudhary. It lays bare our condition in a permanent state of exception at the mercy of an arbitrary and opaque lawgiver.
The writer is Contributing Editor, The Indian Express.