A wave of SC verdicts declaw PMLA’s stringent bail provision

Supreme Court judgments redefine bail provisions under PMLA, emphasizing liberty over detention, setting new precedents for bail eligibility.

A wave of Supreme Court judgments has seen the declawing of a stringent bail provision under the Prevention of Money Laundering Act (PMLA) while emphasising that liberty is the rule while jail is an exception.

The turnaround in the apex court follows two years after its much-debated judgment in Vijay Madanlal Choudhary case, which virtually gave the Enforcement Directorate’s (ED) power of arrest and seizure a free run.

The 2022 verdict did not interfere with restrictive twin conditions for bail under Section 45 of the PMLA. The conditions put an onus on an incarcerated accused to prove in court that he was innocent and, if granted bail, would not commit any offence.

In the latest of its series of corrective judgments, a Bench of Justices B.R. Gavai and K.V. Viswanathan removed the impression that Section 45 imposed an “absolute restraint” on bail. The top court said judges in lower courts had been too casual about refusing bail, causing appeals to pile up in the Supreme Court.

Justice Viswanathan, while granting bail to Jharkhand Chief Minister Hemant Soren’s aide Prem Prakash bail under the PMLA, explained that Section 45 cannot be used to defeat the principle of “bail is the rule”.

“Liberty of the individual is always the rule and deprivation is the exception. Deprivation can only be by the procedure established by law, which has to be a valid and reasonable procedure. Section 45 of the PMLA, by imposing twin conditions, does not rewrite this principle to mean that deprivation is the norm and liberty is the exception,” Justice Viswanathan explained on August 28.

The court has poked holes in the ED’s constant refrain that a crime committed under the PMLA was too serious for bail.