More “hot” issues hogged the headlines, so limited attention was drawn to an apex court bench of Justices Rohinton F Nariman and Sanjay Kishan Kaul recently striking a firm blow for personal freedom against the financial/ economic police ~ regardless of the political complexion of the government in power. The apex court bench declared that the Constitution was violated by Section 45 (I) of the Prevention of Money Laundering Act (2002) which turned on its head the judicial basic of a person being presumed innocence until proven guilty, and reversed the norm of the grant of bail being the rule rather than the exception. Though the government opposed a clutch of petitions questioning the validity of the provision, the court was unimpressed.

Significantly, the Bench rejected a parallel being drawn with the obnoxious TADA. Holding the procedure for bail specified in Section 45 as “manifestly arbitrary, discriminatory and unjust” the Bench went on to describe it as “harsh, burdensome and wrongful” before concluding that a “procedure which is not fair and just would violate both Articles 14 (right to equality) and 21 (right to life and liberty). In fact the presumption of innocence, which is attached to any person being prosecuted for an offence, is inverted by the conditions specified in Section 45,” their Lordships observed when striking down the provision. They proceeded to direct re-assessment of all cases in which that section had been applied. “Considering that persons are languishing in jail and that personal liberty is involved, all these matters are to be taken up at the earliest by the respective courts for fresh decision.”

It would be a convenient over-simplification to conclude that junking a draconian provision would hinder the fight against “black” money, particularly when much political capital is sought to be gleaned from cracking the whip on economic offenders. The Bench must have been fully aware of the lead taken by the Supreme Court, through both previous orders and observations, to curb black money, identify and punish those who have stashed away ill-gotten wealth in tax-havens ~ to which successive governments had chosen to turn a blind eye.

Yet in refusing to “read down” the provisions of Section 45 their Lordships have upheld a cardinal principle of a democratic and civilised society. How that provision was cleared by the Law ministry, and subsequently endorsed by Parliament must indeed trouble the national conscience. Governance is admittedly not an easy task in a country with such varied and conflicting interests, yet taking short-cuts with personal liberty and resorting to “tough” laws is not the way out. This order by Mr Justices Nariman and Kaul was issued only days before the minister for law attempted to “take on” the Supreme Court at a public interaction. The citizen has been reassured that any trampling upon his basic entitlements will not be judicially endorsed