A division bench of the Supreme Court has upheld the ‘twin conditions’ for granting bail under the Prevention of Money Laundering Act, 2002.
A bench comprising Justice A.M. Khanwilkar, Justice Dinesh Maheshwari, and Justice C.T. Ravikumar was considering a bunch of petitions raising various legal issues under the PMLA contending that the twin conditions mentioned in the Act are arbitrary as it is against the basic criminal law jurisprudence of the right of presumption of innocence. The petitioners further contended that the amendment cannot revive Section 45, which was struck down as unconstitutional by the decision in Nikesh Tarachand Shah68. The same could have not been revived by the 2018 and 2019 amendments. A provision or a statute held to be unconstitutional must be considered stillborn and void, and it cannot be brought back to life by a subsequent amendment that seeks to remove the constitutional objection.
In a 545 pages judgment, the Court upheld the “twin conditions” for bail in Section 45 of the PMLA Act and said that the Parliament was competent to amend the said provision in 2018 even after the Supreme Court’s judgment in the Nikesh Tharachand Shah case (which had struck down the twin conditions). The bench said that the Parliament is competent to amend Section 45 in the present form to cure the defects pointed out in the Supreme Court judgment.
“The reasons which weighed with this Court in Nikesh Tarachand Shah for declaring the twin conditions in Section 45(1) of the 2002 Act, as it stood at the relevant time, as unconstitutional in no way obliterated the provision from the statute book; and it was open to the Parliament to cure the defect noted by this Court so as to revive the same provision in the existing form. (b) We are unable to agree with the observations in Nikesh Tarachand Shah707 distinguishing the enunciation of the Constitution Bench decision in Kartar Singh708; and other observations suggestive of doubting the perception of Parliament in regard to the seriousness of the offence of money-laundering, including it, posing a serious threat to the sovereignty and integrity of the country,” the bench said.
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