Section 45 PMLA: Former CJI UU Lalit endorses Justice Rohinton Nariman's overruled judgment

Former Chief Justice of India (CJI) UU Lalit on Monday endorsed the view taken by retired Justice Rohinton Fali Nariman in the Supreme Court's 2017 judgment that struck down Section 45(1) of the Prevention of Money Laundering Act, 2002 (PMLA)..Justice Lalit was addressing an audience at the KT Desai Memorial Lecture of 2022 when he pointed out that there are various statutes where conditions for grant of bail have been made difficult and onerous..He highlighted that in Indian criminal jurisprudence, the principle is not guilty, until proven to be guilty. However, various statutes impose a reverse burden on the accused to prove innocence."Justice Nariman’s decision in PMLA Act section 45 is a pointer in that direction.. he says that such provisions are unconstitutional in nature," the former CJI explained..He then added that if this logic is attached to a provision, it ought to also reflect in other provisions of the same nature."When criminal proceedings was introduced under Section 138 (Negotiable Instruments Act) I don’t think an impact assessment was done as to what would of the docket explosion in courts.".Justice Lalit opined that an assessment on docket explosion must be considered by lawmakers when making amendments."If after a long time, the cat realises that what it has caught is a rabbit and not a rat, it does not reflect well on the society. The 56 persons who will ultimately be acquitted, keeping them behind bars will do no good to the society.".The former Chief Justice was referring to the November 2017 judgment delivered by a bench of Justices Rohinton Fali Nariman and Sanjay Kishan Kaul which struck down Section 45(1) of the PMLA insofar as it imposed two additional conditions for release on bail.The apex court had then set out various illustrations to explain how the twin conditions were manifestly arbitrary and discriminatory.It was also observed that Section 45 is a provision which turns on its head the presumption of innocence and such a provision can be upheld only if there is a compelling State interest..However, this decision was overruled earlier this year by a bench of Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar. The constitutional validity of Section 45, amongst other provisions of the PMLA was upheld was upheld by the three-judge bench..It was found by the three-judge bench that Section 45 post the amendment is legal and not unreasonable.The Court said that it could not agree with 2017 decision in view of the Constitution Bench decision in Kartar Singh as well as the serious threat posed to the country by money laundering activities.