THE INDIAN POLITY AND GOVERNANCE

1. EXPLAINED: BHANG, GANJA, AND CRIMINALITY IN THE NDPS ACT

THE CONTEXT: Recently, Karnataka High Court observed that nowhere in the Narcotic Drugs and Psychotropic Substances (NDPS) Act is bhang referred to as a prohibited drink or prohibited drug. Since the ganja recovered was below commercial quantity, the accused was given bail on a personal bond of Rs 2 lakh.
THE EXPLANATION:
• The single judge Bench relied on two earlier judgments, Madhukar vs the State of Maharashtra, 2002 and Arjun Singh vs State of Haryana, 2004, where the courts had ruled that bhang is not ganja, and is therefore not covered under the NDPS Act.
What is bhang?
• Bhang is the edible preparation made from the leaves of the cannabis plant, often incorporated into drinks such as thandai and lassi, along with various foods. Bhang has been consumed in the Indian subcontinent for centuries, and is frequently consumed during the festivals of Holi and Mahashivratri.
• Its widespread use caught the attention of Europeans, with Garcia da Orta, a Portuguese physician who arrived in Goa in the 16th century, noting that, “[Bhang] is so generally used and by such a number of people that there is no mystery about it”.

Bhang and the law
• Enacted in 1985, the NDPS Act is the main legislation that deals with drugs and their trafficking. Various provisions of the Act punish production, manufacture, sale, possession, consumption, purchase, transport, and use of banned drugs, except for medical and scientific purposes.

The NDPS Act defines cannabis (hemp) as a narcotic drug based on the parts of the plant that come under its purview. The Act lists these parts as:
• Charas: “The separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish.”
• Ganja: “The flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they be known or designated.”
• “Any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom.”
• The Act, in its definition, excludes seeds and leaves “when not accompanied by the tops”. Bhang, which is made with the leaves of the plant, is not mentioned in the NDPS Act.
• As a “special provision”, the Act states that the government “may allow cultivation of any cannabis plant for industrial purposes only of obtaining fibre or seed or for horticultural purposes”.
Cannabis and criminal liability
Section 20 of the NDPS Act lays out the punishment for the production, manufacture, sale, purchase, import and inter-state export of cannabis, as defined in the Act. The prescribed punishment is based on the amount of drugs seized.
• Contravention that involves a small quantity (100 g of charas/hashish or 1 kg of ganja), will result in rigorous imprisonment for a term that may extend to one year and/or a fine which may extend to Rs 10,000.

• For a commercial quantity (1 kg charas/ hashish or 20 kg ganja), rigorous imprisonment of not less than 10 years, which may extend to 20 years, including a fine that is not less than Rs 1,00,000 but may extend to Rs 2,00,000.
• Where the contravention involves quantity less than commercial, but greater than small quantity, rigorous imprisonment up to 10 years is prescribed, along with a fine which may extend to Rs 1,00,000.

2. HARIDWAR: BEST ASPIRATIONAL DISTRICT

THE CONTEXT: NITI Aayog has declared Haridwar city of Uttarakhand as the best aspirational district on the basis of five parameters. Haridwar has secured first position in Basic Infrastructure theme. Now an additional allocation of Rs 3 crore will be made to this city.
THE EXPLANATION:
• The programme was launched in January 2018 aims to quickly and effectively transform some of most underdeveloped districts of the country.
• This scheme has been implemented along with the central and state schemes. In its successful implementation, there is important cooperation of the ‘in-charge’ officers of the central, state level and district collectors.
• The competition between these districts is maintained through equated monthly delta rankings, so that they are eager to make it a success.
• The ranking of aspirational districts combines innovative use of data with practical governance, placing the district at the center of inclusive growth.
• As per the norms for planning of aspirational districts, each district should prepare an action plan in consultation with the State and Central officers in charge, after which it should be sent to NITI Aayog for final approval of the Empowered Committee of Secretaries constituted for the programme.

Parameters for Best Aspirational District
It envisages rapid development of selected districts on basis of composite index based on five parameters

• health and nutrition,
• education,
• financial inclusion and skill development,
• agriculture and water resources
• basic infrastructure

3. PHARMA SAHI DAAM 2.0 APP

THE CONTEXT: The Union Minister of Chemicals and Fertilizers, launched the Pharma Sahi Daam 2.0 App and Integrated Pharmaceutical Database Management System 2.0 during the Silver Jubilee Celebrations of the National Pharmaceutical Pricing Authority (NPPA).
THE EXPLANATION:
Pharma Sahi Daam 2.0 App
• Pharma Sahi Daam 2.0 app will have updated features like speech recognition, Share button and bookmarking medicines. It also has a facility for launching complaints by consumers through the consumer complaint handling module. The app will be available in Hindi and English language in both iOS and Android versions.

IPDMS 2.0
• Integrated Pharmaceutical Database Management System 2.0 is an integrated responsive cloud based application developed by NPPA with technical support from Advanced Computing Center (C-DAC).
• It would provide a single window for submissions of various forms as mandated under Drug Price Control Order (DPCO), 2013.
• It will also enable paperless functioning of NPPAs and facilitate stakeholders to connect with the National Pharma Pricing Regulator from across the country.

National Pharmaceutical Pricing Authority (NPPA)
• NPPA is independent body under Department of Pharmaceuticals under Ministry of Chemicals and Fertilizers. It was set up in 1997. Its mandate is to fix/revise controlled bulk drugs prices and formulations, enforce prices and availability of medicines under DPCO, 2013.
• NPPA fixes ceiling price of essential medicines of Schedule I under DPCO 2013. The calculation for essential drugs is based on simple average of all medicines in particular therapeutic segment with sales of more than 1%. In respect of medicines that are not under price control, manufacturers are allowed to increase the maximum retail price by 10% annually.

THE HEALTH ISSUES

4. ICMR STUDY ON SNAKEBITES

THE CONTEXT: To collect data on mortality, morbidity and socio-economic burden, the Indian Council of Medical Research (ICMR) is conducting a first of its kind study on snakebite incidence in 14 states representing all geographical regions of the country. This study is based on a previous Sri Lankan study, which covered the entire island, surveying <1% of the total population
THE EXPLANATION:
• Himachal Pradesh, Andhra Pradesh, Arunachal Pradesh, Rajasthan, Maharashtra, Kerala, Tamil Nadu, Odisha, West Bengal, Uttarakhand, Meghalaya, Mizoram and Tripura have been included in this study.
• The main objective of this study is to generate realistic data on the incidence, mortality, morbidity and socio-economic burden of snakebites in the country to help decision makers in policy making to prevent and control snakebites in India.
• All snakebite cases occurring during the period of 18 months (April 2022 to October 2023) in the study district will be recorded. A total of 336 blocks in 31 districts with a total population of about 83.9 million will be covered in the study.
• This surveys are also important because geographically the greatest impact of snake bites occurs in tropical and sub-tropical regions, which are highest in India. Global estimates of snakebites range from 4.5 million to 5.4 million annually, of which an estimated 2 million are in India.

Indian Council of Medical Research (ICMR)
• ICMR is the apex body to formulate, coordinate and promote biomedical research. It is one of the oldest and largest medical research bodies across the world. It is funded through the Department of Health Research of Ministry of Health & Family Welfare.

THE INTERNATIONAL RELATIONS

5. EXPLAINED: WHAT ARE ANTI-RADIATION PILLS, HOW WILL THEY HELP IN CASE OF A NUCLEAR EMERGENCY IN UKRAINE?

THE CONTEXT: Amid fears of a nuclear disaster at Ukraine’s Zaporizhzhia power plant growing, the European Union has decided to pre-emptively supply 5.5 million anti-radiation pills to be distributed among residents in the vicinity.
THE EXPLANATION:
What is a radiation emergency?
• These are unplanned or accidental events that create radio-nuclear hazard to humans and the environment. Such situations involve radiation exposure from a radioactive source and require prompt intervention to mitigate the threat. Dealing with such an emergency also involves the use of anti-radiation tablets.
What are anti-radiation pills?
• Potassium iodide (KI) tablets, or anti-radiation pills, are known to provide some protection in cases of radiation exposure. They contain non-radioactive iodine and can help block absorption, and subsequent concentration, of radioactive iodine in the thyroid gland.
How do these pills work?
• After a radiation leak, radioactive iodine floats through the air and then contaminates food, water and soil.
• While radioactive iodine deposited during external exposure can be removed using warm water and soap, according to the World Health Organisation, the bigger risk is inhaling it.
• “According to WHO “Internal exposure, or irradiation, occurs when radioactive iodine enters the body and accumulates in the thyroid gland”.
• The thyroid gland, which uses iodine to produce hormones to regulate the body’s metabolism, has no way of telling radioactive from non-radioactive iodine.
• Potassium iodide (KI) tablets rely on this to achieve ‘thyroid blocking’. KI pills taken a few hours before or soon after radiation exposure ensure that non-radioactive iodine in the medicine is absorbed quickly to make the thyroid “full”.
• “Because KI contains so much non-radioactive iodine, the thyroid becomes full and cannot absorb any more iodine – either stable or radioactive – for the next 24 hours,” says the US Centre for Disease Control and Prevention.
• But KI pills are preventive only and cannot reverse any damage done by radiation to the thyroid gland. Once thyroid gland absorbs radioactive iodine, those exposed are at a high risk of developing thyroid cancer.
Is the method fool-proof?
• Anti-radiation pills do not provide 100% protection. “The effectiveness of KI also depends on how much radioactive iodine gets into the body and how quickly it is absorbed in the body”.
• Also, the pills are not meant for everybody. Experts recommended for people under 40 years of age. Pregnant and breastfeeding women are also advised to take them. While it can protect the thyroid against radioactive iodine, it cannot protect other organs against radiation contamination.

THE PRELIMS PERSPECTIVE

6. VEDIC PLANETARIUM : WORLD’S LARGEST RELIGIOUS MONUMENT

THE CONTEXT: The Vedic Planetarium Temple in Mayapur, West Bengal will soon become the world’s largest religious monument. Currently, the largest religious monument in the world is Angkor Wat, a huge Buddhist temple complex located in northern Cambodia.
THE EXPLANATION:
• The purpose behind the construction of this temple is to make people aware about the Vedic culture. The temple is based on the vision of Acharya Prabhupada, the founder of ISKCON, which would help in the spread of Vedic knowledge in the world.
• The temple is inspired by the design of the US Capitol building. Its construction is estimated to cost about $100 million. On each of its floors, the temple can seat 10,000 devotees and can pray, sing and dance together.
• There are many features of this temple, which make it unique. Its construction began over a decade ago and more than 20 million kilograms of cement has been used in the construction of the structure. In this, each floor will be one lakh square feet, which makes it even more beautiful and also the largest dome has been built in the temple.
• Special Blue Bolivian Marble has been used in the 380 feet high temple, which shows the influence of Western architecture in the temple.
Mayapur
• Mayapur is also known as the Land of the Golden Avatar, this site is about 140 km from Calcutta. An incarnation of Lord Krishna (incarnation of Lord Vishnu), Sri Chaitanya Mahaprabhu was born in this city in the year 1486. The main attraction of the city is Chandrodaya Mandir, the first temple established in the region by ISKCON. The Samadhi of Sri Prabhupada, the founder of ISKCON, is also located here.

THE DATA POINT

1. Prepare yourself for the inevitability of death READ MORE
2. The true knowledge is – Everything is gold READ MORE
3. Insensitive society: A BJP leader tortures a domestic help, a security guard is abused in Noida, another thrashed in Gurugram READ MORE
4. INDIVIDUAL GOOD FOR THE COMMON GOOD READ MORE

1. Stuck in semantics: How confusions over forest land definitions keep benefits away from forest dwellers READ MORE
2. An Arunachal Pradesh town has swapped its water pollution problem for air pollution READ MORE

1. The State must focus on transformational change in the lives of women READ MORE
2. NCRB data shows COVID-19 pandemic made children more vulnerable to crime READ MORE

1. Electricity Amendment Bill 2022: A mixed bag READ MORE
2. India is still awaiting key police reforms READ MORE
3. Benthamite approach to good governance READ MORE

(Newspapers, PIB and other important sources)

Prelim and Main

1. Urban unemployment rate dips to 7.6% in April-June 2022: Survey READ MORE
2. Only 16% of human trafficking cases in 2021 saw convictions: NCRB data READ MORE
3. First-quarter GDP up 13.5%, lower than RBI estimate READ MORE
4. Explained: Bhang, ganja, and criminality in the NDPS Act READ MORE
5. Govt approves signing of MoU with Nepal on biodiversity conservation READ MORE
6. Most number of saltwater crocodile births in Bhitarkanika this year READ MORE
7. An Arunachal Pradesh town has swapped its water pollution problem for air pollution READ MORE
8. The monsoon has ended, so why are Kerala & Karnataka still receiving intense rainfall? READ MORE

Main Exam

GS Paper- 1

1. Stuck in semantics: How confusions over forest land definitions keep benefits away from forest dwellers READ MORE
2. The State must focus on transformational change in the lives of women READ MORE

 GS Paper- 2

POLITY AND GOVERNANCE

1. Electricity Amendment Bill 2022: A mixed bag READ MORE
2. India is still awaiting key police reforms READ MORE
3. Benthamite approach to good governance READ MORE

SOCIAL ISSUES

1. NCRB data shows COVID-19 pandemic made children more vulnerable to crime READ MORE

INTERNATIONAL ISSUES

1. Gorbachev unmade the USSR and made the modern world READ MORE
2. How to end the China dispute READ MORE

GS Paper- 3

ECONOMIC DEVELOPMENT

1. GDP number is disappointing READ MORE
2. A six-point guide for government to regulate freebies READ MORE
3. Making India competitive: Growth should be sustainable and equitable READ MORE

ENVIRONMENT AND ECOLOGY

1. An Arunachal Pradesh town has swapped its water pollution problem for air pollution READ MORE

SECURITY

1. Personal data protection: Firms need to do more READ MORE

DISASTER MANAGEMENT

1. Flood protection calls for a comprehensive approach READ MORE

GS Paper- 4

ETHICS EXAMPLES AND CASE STUDY

1. Prepare yourself for the inevitability of death READ MORE
2. The true knowledge is – Everything is gold READ MORE
3. Insensitive society: A BJP leader tortures a domestic help, a security guard is abused in Noida, another thrashed in Gurugram READ MORE
4. INDIVIDUAL GOOD FOR THE COMMON GOOD READ MORE

Questions for the MAIN exam

1. ‘Some Indian states, heavily burdened with high fiscal deficit and debt levels, have performing better on developmental outcomes’. In the light of the statement discuss whether the states should be allowed to make their own decisions on welfare and freebies?
2. How far do you agree with this view that the New Criminal Identification Act will Create a Surveillance State? Analyse your view.

QUOTATIONS AND CAPTIONS

• Economic disaster begins with a philosophy of doing less and wanting more.
• Concerns of states on some provisions of the new Electricity Bill are justified. But the legislation proposes welcome correctives to longstanding problems of the power sector.
• Collapse of the Soviet Union meant that India had to recalibrate its foreign and industrial policy and open up to foreign capital.
• It is encouraging that the Centre is trying to improve the criminal justice system with new steps. But these changes will remain peripheral unless the system of policing is reformed. As a starter, implement the directives given by the top court and ensure autonomy.
• A comprehensive and inclusive approach to development can pave the way for India’s emergence as an economic powerhouse in the next couple of decades.
• Providing support to the domestic industry should go hand in hand with all-out efforts to make India an attractive destination for trade and investment.
• Reward and punishment can be easily employed as tools to ensure good governance with high success rate.
• Our nation is going through a very difficult time so also the world is facing the hardest time. The time has come for each one of us to contribute to the collective wellbeing and to project that we are one when we fight united.
• The forming of governments by defection rather than election has now become a new normal and sadly touted as ‘masterstroke’ throwing morality and democratic norms to winds.
• The increasing variability of water can weigh heavily on communities and represents a significant risk facing Indian farms, firms, and families.

50-WORD TALK

• The death of Mikhail Gorbachev, who tore down the Iron Curtain, comes as a new Cold War looms. The last Soviet president had a complex legacy, but made the world safer by successfully negotiating limits on nuclear-weapons arsenals. Even competing superpowers can cooperate, Gorbachev showed—a lesson for today’s leaders.

Things to Remember:

• For prelims-related news try to understand the context of the news and relate with its concepts so that it will be easier for you to answer (or eliminate) from given options.
• Whenever any international place will be in news, you should do map work (marking those areas in maps and exploring other geographical locations nearby including mountains, rivers, etc. same applies to the national places.)
• For economy-related news (banking, agriculture, etc.) you should focus on terms and how these are related to various economic aspects, for example, if inflation has been mentioned, try to relate with prevailing price rises, shortage of essential supplies, banking rates, etc.
• For main exam-related topics, you should focus on the various dimensions of the given topic, the most important topics which occur frequently and are important from the mains point of view will be covered in ED.
• Try to use the given content in your answer. Regular use of this content will bring more enrichment to your writing.

[WpProQuiz 322]

THE CONTEXT: On 27 July 2022, a three-judge bench of the Supreme Court in Vijay Madanlal Choudhary vs Union of India, upheld vast parts of the Prevention of Money Laundering Act (PMLA), 2002 including its stringent bail conditions for economic offences that impose a reverse burden of proof on the accused. This article critically examines the Supreme Court judgment.

THE MANDATE OF THE ENFORCEMENT DIRECTORATE(ED): AN OVERVIEW

• ED is a Multi-Disciplinary Organisation under the Department of Revenue, Min of Finance mandated with the task of enforcing the Foreign Exchange Management Act, 1999 (FEMA) and Prevention of Money Laundering Act, 2002 (PMLA)
• The ED headquartered in New Delhi is headed by the Director of Enforcement. There are five Regional offices and other such zonal and subzonal offices in various parts of the country.
• It was formed in 1956 in the Department of Economic Affairs, to investigate cases of foreign exchange-related violations, a civil provision. But in 2002, after the introduction of the PMLA, it started taking up cases of financial fraud and money laundering, which were of criminal nature.
• FEMA 1999 regulates the transactions in currency, import and export of commodities, securities, purchase and sale of any kind etc.
• The main objective of FEMA is to facilitate external trade and payments. In addition to this, FEMA was also formulated to assist the orderly development and maintenance of the Indian forex market.
• Contraventions of FEMA are dealt with by way of adjudication by designated authorities of ED and penalties up to three times the sum involved can be imposed.
• The PMLA provides authority to the ED to investigate offences of money laundering and to take actions of attachment and confiscation of property
• PMLA provides for the prosecution of the persons involved in the offence of money laundering. There are 156 offences under 28 statutes which are Scheduled Offences under PMLA.
• ED also processes cases of fugitive/s from India under the Fugitive Economic Offenders Act, 2018.
• The powers of the survey, search and seizure, the search of persons, retention of property or of records, to issue summons to enforce the attendance of any person and compel him to give evidence or produce records, discovery or inspection, and the power to arrest, etc are conferred by various provisions of PMLA.
• Render cooperation to foreign countries in matters relating to money laundering etc.

GREY AREAS IN PMLA: GROUND FOR CHALLENGE

ABSENCE OF A PROCEDURE

• Unlike the CrPC which provides for a proper procedure to commence an investigation, in the PMLA there is no procedure prescribed.
• For instance, Section 154 and 155 of CrPC dealing with cognisable and non-cognisable offences but in PMLA no such procedures are prescribed and there is no registration of FIR under the Act. This violates Art 21 of the Constitution.

ENFORCEMENT CASE INFORMATION REPORT (ECIR)

• The PMLA has an internal manual where the ED officers record an ECIR- Enforcement Case Information Report. That is something that is kept by the ED to themselves and is not revealed to anybody even to the magistrate.
• This means an individual can be prosecuted without knowing why he has been proceeded against.

AUTOMATIC REGISTRATION OF CASE BY ED

• There are 156 Scheduled Offences and whenever a predicate offence is registered, the ED starts investigation under PMLA. This provides wide latitude and discretion to ED which is often misused.
• There must be something beyond the FIR under the predicate offence which needs to be established for the ED to commence the investigation.

ARTICLE 20(3)

• Section 50 of the PMLA vests the ED officers with the power of a Civil Court. But while exercising the power of summons to a person by ED, usually no reason is provided for such summons. Neither the person is informed whether s/he is summoned as a witness or as an accused nor any information is given on what predicate offence s/he is charged under.
• Secondly, the person must compulsorily answer the questions put forward by the officers and must sign the disclosure statement which is used as evidence against him in the court.
• This is a direct violation of Art 20(3) which protects individuals from self-incrimination. (No person accused of any offence shall be compelled to be a witness against himself)

ORDINARY CRIMES INCLUDED IN SCHEDULED OFFENCES

• Section 120 B dealing with criminal conspiracy is part of PMLA. The section can be applied to any offence and requires only a mere allegation.
• There is no threshold of initiating a PMLA case based on 120B. Similarly, murder is also part of PMLA, and it is doubtful why such an isolated act can be a part of PMLA.
• It is another matter if there is an organised crime activity but on its own, these offences should not be part of PMLA.

2019 AMENDMENTS

• The 2019 amendments have increased the powers of the ED. The offences under the PMLA became standalone crimes, and the offences have been made cognisable and non-bailable.
• It has expanded the definition of proceeds of crime which means assets not directly related to the proceeds of crime can also be attached.

THE JUDGMENT

EDs POWER OF ARREST

• The Court upheld the constitutionality of the provisions of Sections 5, 8(4), 15, 17 and 19 of the PMLA, which relate to the powers of ED’s power of arrest, attachment, search and seizure.
• However, the court rejected the notion that the ED has been given blanket powers of arrest, search of person and property and seizure. The court said there were in-built safeguards” within the Act, including the recording of reasons in writing while effecting an arrest.

REASONABLE NEXUS

• The Court also upheld the reverse burden of proof under Section 24 of the Act and said that it has “reasonable nexus” with the objects of the Act.
• Court made it clear that the State has a compelling interest in imposing stringent bail conditions for economic offences.

ENFORCEMENT CASE INFORMATION REPORT (ECIR)

• The Court also held that the ED officials are not “police officials” and hence the statements recorded by them under Section 50 of the Act are not hit by Article 20(3) of the Constitution, which guarantees the fundamental right against self-incrimination. The punishment of fine or arrest for giving false information cannot be construed as a compulsion to give statement.
• The Court further held that Enforcement Case Information Report(ECIR) cannot be equated with an FIR and that it is only an internal document of the ED. Therefore, the CrPC provisions relating to FIR will not apply to ECIR.
• Supplying ECIR is not mandatory and disclosure of grounds of arrest is sufficient. However when person is before Special Court, it can ask for records to see if continued imprisonment is necessary.

TWIN CONDITIONS OF BAIL

• The court ​​upheld the stringent twin bail conditions required under the law for granting bail to an accused. The two conditions require a court to hear the public prosecutor against the bail plea and reach a satisfaction that there are reasonable grounds to believe that the accused is not guilty of the offense and that he is not likely to commit any offence while on bail.
• However, the court said undertrials could seek bail under Section 436A of the Code of Criminal Procedure if they had already spent one-half of the term of punishment in jail for the offence prescribed in law. But, again, this is not an “absolute right” and would depend from case to case.

BURDEN OF PROOF

• Issue of the burden of proof rests heavily on the shoulders of the accused: The court upheld this provision and said that this provision did not suffer from the “vice of arbitrariness or unreasonableness”.

VACANCIES IN PMLA APPELLATE TRIBUNAL

• The Court also directed the Centre to fill up the vacancies in the PMLA Appellate Tribunal.

ABOUT AMENDMENTS

• Introduction of the amendments through Money Bills: The SC held that this issue would be separately examined by a larger Bench of the apex court.

CRITICISMS OF THE JUDGMENT

1. Sui generis PMLA: The PMLA is not a penal statute, but a sui generis one, which means that the law can, according to the Court, overlook several constitutional safeguards, including the right against self-incrimination.
2. Section 45 of PMLA: The judgement not only grants sanction to Parliament’s effort at reintroducing a law previously declared unconstitutional but also holds that the requirements for bail are by no means arbitrary or unreasonable. This is problematic for the fact that the predicate offences contained in the Schedule not only include terrorism as an offence but also the discharging of pollutants under the Environment Protection Act; penalties for applying for a false trade mark under the Trade Marks Act etc. and the present judgment makes no distinction in the extent of the crimes.
3. Test of Proportionality: The Supreme Court’s judgment in K.S. Puttaswamy vs Union of India held that fundamental rights operate not in silos, but by giving and taking meaning from each other and that any invasion of a constitutionally guaranteed freedom must satisfy a test of proportionality. This meant that every time the state impinged on a right, it had to show, among other things, that there existed not only a rational nexus between the law made by it and the objective at stake but also that it had satisfied itself that there were no less invasive means available to achieve the same aim. The present judgement in the PMLA case, the Supreme Court is somehow seen to move away from the pillars of constitutionality erected in the previous judgments and fails to protect personal liberty from draconian provisions.

THE PROBLEMS IN THE FUNCTIONING OF THE ENFORCEMENT DIRECTORATE

POLITICISATION

• The ED is alleged to be targeting those political leaders who do not belong to the ruling party/parties at the Centre. Even the past cases of these leaders have been reopened in order to pressurize them either to change parties or to curb dissent.

TARGETING DISSIDENTS

• The PMLA has been misused for targeting dissident voices and thereby preventing free speech and expression.
• This has become a routine affair especially in the case of NGOs. For instance, all bank accounts of Amnesty International India were completely frozen by the Enforcement Directorate in September 2020 on the charge of the alleged violation of PMLA.

VIOLATING FEDERAL PRINCIPLES

• The division of power under the Schedule 7 of the Constitution places the responsibility for police and public order in the State List. But the power of ED to investigate cases without states consent especially in ordinary crimes is against federal principles.

SELECTIVE APPLICATION OF LAWS

• The ED has been accused of selective application of the PMLA provisions and the major money laundering scams are either not investigated or not followed up by ED.
• For instance, The Rose Valley Chit Fund Scam in Odisha, the NARADA scam in West Bengal etc seem to have missed ED radar.  One MP was seen in a video taking a bribe, ED summoned him, but nothing was heard after he switched party.

POOR PROFESSIONALISM

• A look at the last 17 years, since the criminal law was enacted, the Enforcement Directorate has filed more than 5,400 money laundering cases and it has secured conviction against just 23 persons till now. The ED’s conviction rate is as low as 0.5% even after the dramatic increase in raids.

VIOLATION OF RULE OF LAW

• ED can carry out the pre-trial attachment of property and funds just on basis of reasons to believe of the investigative authority and not concrete facts. So even without an investigation is complete, a persona can be charged, and the property can be attached just because a complaint/investigation exists against him.
• It effectively means that though a citizen is presumed not guilty, he is deprived of control over his property, when the prosecution believes that it comes from tainted money, effectively destroying lives, families, and businesses, just on the basis of investigators’ reason to believe and not on evidence.

VIOLATES ORIGINAL INTENT

• The Act gave expression to India’s commitment to the United Nations to enact domestic legislation to curb the laundering of money linked to drug trafficking. However, a series of subsequent amendments have sought to systematically dilute the cardinal intent of the Act, reducing it to an instrument of arbitrary power in the hands of the ED.

PINCH OF OPTIMISM IN THE FUNCTIONING OF THE ED

Of late, the ED has not just taken up high-profile cases, but has also actively started investigating them, filed charge sheets in many long-pending cases, attached properties in a series of cases worth Rs 58,000 crore, moved applications, and even secured extraditions. In the last 10 years, the ED has attached assets worth Rs 58,333 crore. The highest number of attachments has been made in the Sterling Biotech case, amounting to Rs 14,000 crore. Between 2005 and March 2018, the agency attached assets worth Rs 27,000 crore, of which Rs 14,000 crore, a little over 50 per cent, pertained to cases of bank fraud. Since the PMLA was enacted, more than 2,500 ECIRs have been filed in the ED, and the investigation is pending in over 1,000 cases. The agency sends letters rogatory to different countries to obtain information about individuals and entities offshore. A letter rogatory is a formal communication from a competent court to a foreign court and is processed by the Ministry of External Affairs on behalf of investigative agencies. But most of these letters go unanswered, severely affecting the investigation. In some cases, this can lead to a court dismissing a case due to a lack of evidence. In 90 per cent of cases, the money is laundered and stashed in tax havens abroad, and when ED do not get information from there, the investigation suffers.

POSITIVES IN THE JUDGEMENT:

• The court in its order made it clear that the mere the provisional attachment order passed under the Act does not mean that the property stands confiscated; and until and order of confiscation is formally passed, there is no reason to take the possession of such property. It is hoped that the ED will now refrain from issuing notices asking persons whose assets are attached to vacate their properties before a confiscation order is passed by the trial court.
• As per the judgment, not everyone in possession of ‘proceeds of crime’ can be prosecuted, but only those concerned in any process or activity. The practice of making every person whose assets are attached as an accused, and prosecuting them merely because they are relatives of the main accused person and are holding an asset given to them by the main accused, will now hopefully stop.

THE WAY FORWARD:

• The safeguards: The PMLA is a code dealing with money laundering and ED officers investigating under this Act are not police officers, and as such, not bound by the restrictions applicable to the police under the Code of Criminal Procedure. ED is staffed by senior officers and that such officers are assumed to be fairer in their conduct than the regular police. PMLA also incorporates penalties against erring officers for vexatious search. Such safeguards must be strengthened to combat any misuse.
• Predicate offence: While affirming its powers, the court has however reiterated the procedural limitations of this Act, including the necessity of a predicate offence before a prosecution for money laundering can be launched. A predicate offence is one mentioned in the schedule to the PMLA, which is the crime which gives rise to the ‘proceeds of crime’, which are then laundered. The clear reinforcement by the Supreme Court of the necessity of a predicate offence is going to help in circumscribing the misuse of the ED’s power. There must be a consensus between the adjudicating authority and the officers of ED to abide by the constitutionality of this provision under PMLA, making the investigation more lucid.
• The due process: In a system where the average person approaching the average police station does so without any great hope for justice, it is due process which is the most urgent need to protect the life and liberty of the poorest and most helpless. The ED, in a perverse democratisation, has brought this fear to the high and mighty. The reforms, to affect the need for due regulation of the ED and all other agencies performing investigative and penal functions might end this phase of misuse of agencies like the ED for political vendetta.
• Operational Vigilance: There must be a constant scrutiny over the operations of the Enforcement Directorate and current disposition whether this clarification will improve the conviction rate (which is right now less than half a percent). And if there will be any lacunas in the operative part, change is the law of nature, these gaps can be filled either through suitable legislation, executive action or revised order of the apex court.

THE CONCLUSION: The ED is a weapon frequently used by the government against its opponents and critics. The judgement has failed to protect citizens at a time when executive excess using that weapon is often visible. The draconian provisions of the PMLA challenge and override many fundamental rights of citizens, and it is wrong that such provisions, prone to much misuse, are allowed to continue on the statute book.India’s criminal justice system is built on a set of axioms that are inherent to the basic precepts of justice and fairness. These include the idea that a person is presumed innocent until proven guilty; the court has held that the presumption of innocence until proven guilty can be interdicted by a law made by Parliament/Legislature. The judgement raises many concerns and needs to be reviewed by the court.

Mains Practice Questions:

1. PMLA is part of a global response to organised crime. Whether the recent Supreme Court judgment fails to protect the personal liberty from draconian provisions? Critically analyse.
2. The Supreme Court judgement upholding the stringent provisions of the Prevention of Money Laundering Act (PMLA), 2002, weakens many rights of citizens and the safeguards provided by law against executive excess. Comment.
3. By upholding self-Incrimination and the presumption of guilt, the court has put the personal liberty of citizens at risk. Critically analyse the Supreme Court judgment on the provisions of Prevention of Money Laundering Act (PMLA), 2002
4. India’s proximity to the two of the world’s biggest illicit opium-growing states has enhanced her internal security concerns. Explain the linkages between drug trafficking and other illicit activities such as gunrunning, money laundering and human trafficking. What counter-measures should be taken to prevent the same? (2018)
5. Discuss how emerging technologies and globalisation contribute to money laundering. Elaborate measures to tackle the problem of money laundering both at national and international levels. (2021)