Overarching draconian PMLA statute must be fixed

When enacted in 2002, it was to curb the crime proceeds derived under the NDPS Act, IPC, Immoral Traffic (Prevention) Act, The Arms Act, and Prevention of Corruption Act.
Image used for representational purpose only.
Image used for representational purpose only.

Contrary to the original intent of giving effect to the UN General Assembly in 1998 to combat the severe concern of drug money being used to promote terrorism, the application of the Prevention of Money Laundering Act, 2002 (PMLA) has been criticised for abusing the powers and conferring excessive authority to the Enforcement Directorate for every ordinary crime.

When enacted in 2002, it was to curb the crime proceeds derived under the NDPS Act, IPC, Immoral Traffic (Prevention) Act, The Arms Act, and Prevention of Corruption Act. However, the current list encompasses almost every penal law in India for which a remedy already exists, transforming PMLA into a superseding law.

While investigating agencies are bound by the Criminal Procedure Code (CrPC) in wielding police powers, under the PMLA, authorities who are not police officers take precedence over any substantive law, including the CrPC. Armed with the three judge bench of the Supreme Court’s interpretation in the case of Vijay Mandanlal Choudhary Vs Union of India, the ED is neither obliged to wait for an FIR under the substantive Schedule Act before initiating investigations nor share with the accused the reasons for inquiry. The other unsafe procedures found in the Act are not limited to procedures relating to the commencement of investigation, and for summoning individuals, but while remanding by the magistrates, they need not be informed of the reason for the arrest.

The draconian twin bail conditions to be satisfied for considering bail application of the accused, which is encouraging preventive detention of accused indefinitely is another unsafe procedure.

Recording of the statement by ED officials tendered during the summoning of accused or third parties under duress which are devoid of any safeguards; usurping jurisdictions over unlisted scheduled offences to confer jurisdiction on themselves and which can even bring day-to-day commercial or business transactions to a standstill; accused need not be disclosed with charged offences during investigation; attaching a property and taking possession even before the conclusion of Trial and so on makes the list extensive.

Unjustifiable incarceration in cases without any evidence where the accused are denied bail and confined in jail even before trial for months raises much concern. What will happen if the accused is acquitted later for lack of evidence?

It is alleged that the present union government uses ED officials for political poaching. When opponents resist, they are arrested and imprisoned on baseless allegations. The arrest of Hemanth Soren and Arvind Kejiriwql just before the elections are standing textbook examples of gross abuse of political power with ulterior motives. Having slept over for many months, such custodial interrogation is unwarranted and obvious.

No doubt, these statutory officials who misuse their power will be punished under the same Act for false prosecutions, but by then, the damage done to the party in power and the person detained is irreparable, and no amount of punishment to these power-yielding officials is going to compensate for the damage. Suffice it to say that the Act empowers the Enforcement Directorate to be a sweeping authority in India, with wide-ranging powers, constitutional guarantees, and safeguards swept under the carpet of PMLA.

Above all, it is alleged that constitutional courts are watching helplessly.

ED claims to have sky-high powers to barge inside any state government’s office to seize classified documents, summon and arrest any person, compel the officials to testify against the state irrespective of their being accused, conduct raids in government properties flouting federalist principles, individual liberties and constitutional guarantees.

Voluminous documents available in the public domain suggest the abuse of PMLA powers by some officers, including allegations of seeking bribes and summoning farmers who fail to sell their land to influential people. Due to the illusionary unfettered powers of the Enforcement Directorate with the potential to abuse and infringe upon individual rights, the existing unaccountable PMLA warrants a meticulous immediate revamp or complete repeal to protect constitutional guarantees and to prevent the common man from being harassed and being allegedly misused as a tool to indulge in extortion against business community, political opponents besides becoming an overarching penal statute.

P Wilson is senior advocate and Member of Parliament

Footnote is a weekly column that discusses issues relating to Tamil Nadu

A superseding law

PMLA was to curb crime proceeds derived under NDPS Act, IPC, Immoral Traffic (Prevention) Act, The Arms Act, and Prevention of Corruption Act. The current list encompasses almost all penal laws for which a remedy exists, making PMLA into a superseding law

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