Restrictions on grant of bail under PMLA if valid

Section 45 of Prevention of Money Laundering Act is unconstitutional.

Section 45 of the 2002 Act, which was brought into force in 2005, originally read as follows:

“45. Offences to be cognizable and non- bailable.-

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless-

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail:

Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, may be released on bail, if the Special Court so directs:

Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by- (i) the Director; or (ii) any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government.

(2) The limitation on granting of bail specified in clause (b) of sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.”

The change made by Section 45 is that, for the purpose of grant of bail, what was now to be looked at was offences that were punishable for a term of imprisonment of three years or more under Part A of the Schedule, and not offences under the 2002 Act itself. At this stage, Part A of the Schedule contained two paragraphs – Para 1 containing Sections 121 and 121A of the Indian Penal Code, which deal with waging or attempting to wage war or abetting waging of war against the Government of India, and conspiracy to commit such offences. Paragraph 2 dealt with offences under the Narcotic Drugs and Psychotropic Substances Act, 1985. Part B of the Schedule, as originally enacted, referred to certain offences of a heinous nature under the Indian Penal Code, which included murder, extortion, kidnapping, forgery and counterfeiting. Paragraphs 2 to 5 of Part B dealt with certain offences under the Arms Act 1959, Wildlife (Protection) Act 1972, Immoral Traffic (Prevention) Act, 1956 and the Prevention of Corruption Act, 1988. When the Act was originally enacted, it was, thus, clear that the twin conditions applicable under Section 45(1) would only be in cases involving waging of war against the Government of India and offences under the Narcotic Drugs and Psychotropic Substances Act. Even the most heinous offences under the Indian Penal Code were contained only in Part B, so that if bail were asked for such offences, the twin conditions imposed by Section 45(1) would not apply. Incidentally, one of the reasons for classifying offences in Part A and Part B of the Schedule was that offences specified under Part B would get attracted only if the total value involved in such offences was Rs.30 lakhs or more (under Section 2(y) of the Act as it read then). Thereafter, the Act has been amended several times. The amendment made in 2005 in Section 45(1) was innocuous and is not an amendment with which we are directly concerned. The 2009 Amendment further populated Parts A and B of the Schedule. In Part A, offences under Sections 489 A and B of the Indian Penal Code, relating to counterfeiting were added and offences under the Explosive Substances Act, 1908 and Unlawful Activities (Prevention) Act, 1967, which dealt with terrorist activities, were added. In Part B, several other offences were added from the Indian Penal Code, as were offences under the Explosives Act 1884, Antiquities and Arts Treasures Act 1972, Securities and Exchange Board of India Act 1992, Customs Act 1962, Bonded Labour System (Abolition) Act 1976, Child Labour (Prohibition and Regulation) Act 1986, Transplantation of Human Organs Act 1994, Juvenile Justice (Care and Protection of Children) Act 2000, Emigration Act 1983, Passports Act 1967, Foreigners Act 1946, Copyright Act 1957, Trademarks Act 1999, Information Technology Act 2000, Biological Diversity Act 2002, Protection of Plant and Farmers Rights Act 2001, Environmental Protection Act 1986, Water (Prevention and Control of Pollution Act) 1974, Air (Prevention and Control of Pollution Act) 1981 and Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms of Continental Shelf Act, 2002.

By the Amendment Act of 2012, which is Act 2 of 2013, a very important amendment was made to the Schedule by which the entire Part B offences were transplanted into Part A.

Unreasonable classification

The classification of three years or more of offences contained in Part A of the Schedule must have a reasonable relation to the object sought to be achieved under the 2002 Act. Continue reading “Restrictions on grant of bail under PMLA if valid”

Advertisements

Role of Judiciary in Democracy

Judicial powers and its scope

Judiciary enjoys neither the legislative nor executive power. Its duty is to preserve Constitution, its mandates and make the people wielding power to act within limits provided by the Constitution and make them directly accountable for their acts to the authorities provided under the hierarchy of Constitution. It is said constitution is just to be common sense of the people and was never designed for trial of logical skills or visionary speculation.

Once the limits are imposed by law or Legislature, consequences are inevitable. The acts can only be done in accordance with the enactment. Judges’ morality or morality of one section may be pernicious. Courts cannot impose their views for the governance of the people who have a right to be governed by law or elective representatives but not by an unelected representatives and unaccountable committee of lawyers applying no will but their own. Continue reading “Role of Judiciary in Democracy”

Custodial Violence and Death of Prisoners in India

 If civilization is not to perish in this country as it has perished in some others too well known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy.
[Source: Rudul Sah v. State of Bihar,(1983) 4 SCC 141.]

Custodial Violence

Custodial violence has always been a matter of great concern for all civilized societies. Custodial violence could take the form of third degree methods to extract information – the method used need not result in any physical violence but could be in the form of psychological violence. Custodial violence could also include a violation of bodily integrity through sexual violence – it could be to satisfy the lust of a person in authority or for some other reason. The ‘Mathura Rape Case’ is one such incident that most are familiar with. Custodial violence could, sometimes, lead to the death of its victim who is in a terribly disadvantaged and vulnerable condition. All these forms of custodial violence make it abhorrent and invite disparagement from all sections of civilized society.

The recent directives of Supreme Court, in regard to prison conditions:

Continue reading “Custodial Violence and Death of Prisoners in India”

Triple talaq is sinful and no more lawful in India

Supreme Court: Triple talaq is manifestly arbitrary.

(An abstract of the decision of Supreme Court dated 22 August 2017)

Types of Talaq in Muslim Law

‘Talaq-e-hasan’ is pronounced in the same manner, as ‘talaq-e-ahsan’. Herein, in place of a single pronouncement, there are three successive pronouncements. After the first pronouncement of divorce, if there is resumption of cohabitation within a period of one month, the pronouncement of divorce is treated as having been revoked.
The same procedure is mandated to be followed, after the expiry of the first month (during which marital ties have not been resumed). ‘Talaq’ is pronounced again. After the second pronouncement of ‘talaq’, if there is resumption of
cohabitation within a period of one month, the pronouncement of divorce is treated as having been revoked. It is significant to note, that the first and the second pronouncements may be revoked by the husband. If he does so,
either expressly or by resuming conjugal relations, ‘talaq’ pronounced by the husband becomes ineffective, as if no ‘talaq’ had ever been expressed. If the third ‘talaq’ is pronounced, it becomes irrevocable.
Therefore, if no revocation is made after the first and the second declaration, and the husband makes the third pronouncement, in the third ‘tuhr’ (period of purity), as soon as the third declaration is made, the ‘talaq’ becomes
irrevocable, and the marriage stands dissolved, whereafter, the wife has to observe the required ‘iddat’ (the period after divorce, during which a woman cannot remarry. Continue reading “Triple talaq is sinful and no more lawful in India”

Fundamental Right to Privacy: Does it exist?

Right to privacy debate

Whether citizens of India have a fundamental right of privacy?

The controversy about right to privacy has been argued in a larger constitution bench of nine judges and judgement has been reserved. But what exactly is the controversy?

The fourth Amendment in the Constitution of USA provide following clause:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Constitution of India has no such clause but in some of the cases the right to privacy has been read into the right to life because the life means a meaningful life and not merely an animal existence. Thus to make life more than animal existence, privacy is held to be part of right to life guaranteed by article 21 o Constitution of India, which is as under:

No person shall be deprived of his life or personal liberty except according to procedure established by law.

Continue reading “Fundamental Right to Privacy: Does it exist?”

Exercise of jurisdiction of judicial superintendence

Jurisdiction of High Court under article 227.

Article 227 is as under:

227. Power of superintendence over all courts by the High Court
(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories interrelation to which it exercises jurisdiction
(2) Without prejudice to the generality of the foregoing provisions, the High Court may
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts; Continue reading “Exercise of jurisdiction of judicial superintendence”

Arbitrary and discriminatory lagislation

Violation of equality clause in the Constitution.

Validity of economic legislation leaving a section of people.

Fourteenth Amendment of Constitution of USA and view of Supreme Court of USA:

When local economic regulation is challenged solely as violating the Equal Protection Clause, this Court consistently defers to legislative determinations as to the desirability of particular statutory discriminations. … Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest. States are accorded wide latitude in the regulation of their local economies under their police powers, and rational distinctions may be made with substantially less than mathematical exactitude. Legislatures may implement their programme step-by-step … in such economic areas, adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations … In short, the judiciary may not sit as a super-legislature to judge the wisdom or undesirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines …, in the local economic sphere, it is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment.

[Source: City of New Orleans v. Dukes 427 U.S. 297 (1976)]

The courts should not adopt a doctrinaire approach which might well choke all beneficial legislation and that legislation which is based on a rational classification is permissible. A law applying to a class is constitutional if there is sufficient basis or reason for it. In other words, a statutory discrimination cannot be set aside as the denial of equal protection of the laws if any state of facts may reasonably be conceived to justify it. Continue reading “Arbitrary and discriminatory lagislation”

Validity of Appointment of Parliamentary Secretaries in India

Ceiling on number of Ministers.

Article 164(1A) of the Constitution of India is as under:

The total number of Ministers, including the Chief Minister, in the Council of Ministers in a State shall not exceed fifteen per cent of the total number of members of the Legislative Assembly of that State:

Provided that the number of Ministers, including the Chief Minister, in a State shall not be less than twelve;

Provided further that where the total number of Ministers, including the Chief Minister, in the Council of Ministers in any State at the commencement of the Constitution (Ninety-first Amendment) Act, 2003 exceeds the said fifteen per cent or the number specified in the first proviso, as the case may be, then the total number of Ministers in that State shall be brought in conformity with the provisions of this clause within six months from such date as the President may by public notification appoint.

Jumbo Cabinet in Assam.

Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Ordinance, 2004

On 3.11.2004, the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Ordinance, 2004 was promulgated which inter alia provided as under:

The Chief Minister may, having regard to the circumstances and the need of the situation, at any time appoint such number of Parliamentary Secretaries and assign to each of them such duties and functions as he may deem fit and proper.

Section 4 declares that Parliamentary Secretary should be of the rank and status of a Minister of State and exercise such powers, discharge such functions and perform such duties as may be assigned to him by the Chief Minister.

Section 4 – A Parliamentary Secretary shall be of the rank and status of a Minister of State and shall exercise such powers, discharge such functions and perform such duties as may be assigned to him by the Chief Minister by way of a notification published in the official Gazette.

Now this is apparently provides what Article 164(1A) expressly prohibits. So is it valid?

Creation of Political Executive

Another argument is that the Political Executive (both national and state level) is the creation of the Constitution itself. Articles 74(1) 6, 75(1)7, 163(1)8 and 164(1)9 of the Constitution create the offices of the Prime Minister, Chief Minister and other Ministers respectively. The framers of the Constitution were aware of the different offices in vogue (such as Parliamentary Secretaries, Deputy Ministers etc) in various parliamentary democracies but chose to make provisions for only the office of ‘Minister’. Continue reading “Validity of Appointment of Parliamentary Secretaries in India”

Right of speedy trial

No person shall be deprived of his life or his personal liberty except according to procedure established by law.

Life and liberty, the words employed in shaping Article 21, by the Founding Fathers of the Constitution, are not to be read narrowly in the sense drearily dictated by dictionaries; they are organic terms to be construed meaningfully. Embarking upon the interpretation thereof, feeling the heart-throb of the Preamble, deriving strength from the Directive Principles of State Policy and alive to their constitutional obligation, the Courts have allowed Article 21 to stretch its arms as wide as it legitimately can. The mental agony, expense and strain which a person proceeded against in criminal law has to undergo and which, coupled with delay, may result in impairing the capability or ability of the accused to defend himself have persuaded the constitutional courts of the country in holding the right to speedy trial a manifestation of fair, just and reasonable procedure enshrined in Article 21. Speedy trial, again, would encompass within its sweep all its stages including investigation, inquiry, trial, appeal, revision and re-trial in short everything commencing with an accusation and expiring with the final verdict the two being respectively the terminus a quo and terminus ad quem of the journey which an accused must necessarily undertake once faced with an implication.

Is it at all necessary to have limitation bars terminating trials and proceedings?

Is there no effective mechanisms available for achieving the same end? The Criminal Procedure Code, as it stands, incorporates a few provisions to which resort can be had for protecting the interest of the accused and saving him from unreasonable prolixity or laxity at the trial amounting to oppression. Continue reading “Right of speedy trial”

History of evolution of Constitution of India.

The history of Constitutional development in India.

THE CONSTITUTION OF INDIA is the supreme law of the land.

Constitution of India is invaluable to students of Political Science in that it is amongst the latest of federal constitutions and embodies features suitable for the working of federal governments under modern conditions.

Constitution of India has drawn largely from federal constitutions in foreign countries, but at the same time, it is not an artificial patchwork of heterogeneous bits scissored from different sources, and pieced together. There was in force, previously to the Constitution, a federal form of Government established by the Government of India Act, 1935, which, in turn, was evolved from a system of Government which was unitary in character. To understand aright the true scope of the provisions of the Constitution, therefore, it is necessary to have knowledge of the working of the Government of India prior thereto. By the expression Government of India is meant Government of British India, that is, of India excluding the territories ruled by Indian rulers and by other European powers such as France and Portugal.

1600 AD: East India Company.

2. On 31st December 1600, the East India Company obtained a Charter from Queen Elizabeth granting it a monopoly of trade in the East and pursuant thereto, it established factories at Fort William, Bombay and Madras. In the beginning, its activities were purely commercial but in the unsettled conditions that prevailed on the break-up of the Mogul Empire on the death of Aurangazeb in 1707, the Company drifted into the sea of politics and after the battle of Plassey in 1757, it assumed the role of a ruling power in this country. The acquisition of political power by a trading corporation led to abuse and corruption on the part of its officials on an unprecedented scale and evoked widespread criticism in England. When the Company which was in financial difficulties at this time applied for a loan to the British Government, the latter seized the opportunity to intervene and acting on the doctrine that acquisition of sovereignty by a subject could only be on behalf of the sovereign, brought the administration of the territories acquired by the Company under the authority and control of the British Parliament. With this object, Parliament enacted first the Regulating Act of 1773, and then again Pitt’s Act in 1784. Three Presidencies were constituted with Fort William, Bombay and Madras as their capitals. The administration of the Presidency of Bengal was entrusted to a Governor-General assisted by a Council which had authority to enact laws. Likewise, the Presidencies of Bombay and Madras were to be administered each by a Governor assisted by a Council which had independent power of legislation but the Governors were to some extent subordinate to the Governor-General. The Charter Act of 1813 took away the monopoly rights of the Company to trade in India and the Act of 1833 stripped it of all its commercial activities in India, leaving to it only its political vestments. One notable feature of this Act was that it divested the Governors of Bombay and Madras of the power to enact laws which had been granted to them by the Acts of 1773 and 1784. Thus, the Governor-General stood as the sole legislative authority for India.

Preamble of Constitution of India

1857 AD: Great Indian Mutiny.

Continue reading “History of evolution of Constitution of India.”