PMLA Judgment Reconsideration : Live Updates From Supreme Court [Day 2]

Singhvi: Amendment came on April 19, 2018. Section 45(1) is relevant for our purpose. The reason for which the public prosecutor opposes or does not oppose is uncanalised and left open.

Singhvi reads out Section 45.

"Just see the before and after of the provision. What was Section 45 prior to Nikesh Tarachand Shah, i.e., the tabula rasa, then after that, and after the amendment..."

Singhvi: Now let's come to the section.

Khanna J: A question that arises: under Section 19, onus is on you at the time of arrest. Can the onus shift after arrest?

SG Mehta: (inaudible)

Khanna J: The onus completely shifts?

Singhvi: Let's see Section 45...

Singhvi: So much injustice is caused is because...arrest is easy, but liberty means there will be presumption of innocence. Today, the entire thing has turned on its head. You keep a person inside because of the twin conditions.

Singhvi: On the contrary, FATF repeatedly says to comply with your constitutional guarantees. Make sure you don't violate third-party bona fides.

Singhvi: In the schedule of PMLA, there are 10-15 offences that are bailable and non-cognizable under the IPC. So if I go under IPC, I'll get bail. But when I'm arrested by ED under PMLA, bail...This is bizarre.

Singhvi: FATF is the gospel according to them. They say many of the amendments are done to align with FATF standards. Not a line, word, comma, or fullstop in FATF guidelines, the Palermo convention, or the Vienna convention suggest that we must have a twin condition.

Singhvi: Second, it was also not put in the Ninth Schedule. Third, it's also not relatable to special provisions like Art 31A, 31C, etc. Statement of reason does not mention a single word about how any vice is being removed that Your Lordships painstakingly itemised.

Singhvi: Once a law is struck down under Art 13, post-constitution law is obliterated and void, as if it never existed. This is what has been held by a constitution bench. Therefore, there can be no revival in the statute by 3 words.

Draws a distinction between effect of striking down on pre-constitution law and post-constitution law. 

Singhvi: Trial is a never-ending process in India. Denial of bail during trial is a very serious issue. Section 45 was already declared unconstitutional...

Trivedi J: There was an amendment...

Singhvi: How can an amendment of the act by 3 words in 2018 revive something declared unconstitutional?

Singhvi: This is at the heart of the liberty debate. Section 45 is the paramount issue.

Trivedi J: Yesterday also, I pointed out, you have not challenged the vires of Section 45 or the conditions in it. Please read your prayer.

Singhvi argues that their contentions on Section 45 PMLA is supported by the pleadings in the petition.