22 Dec 2023 : The Hindu Editorial

Editorial 1 : Revision sans vision

Context: On the three Bills that replace the body of criminal laws in India.

Introduction

• Law-making in the absence of a significant number of Opposition members does not reflect well on the legislature.
• The three Bills that replace the body of criminal laws in India were passed by Parliament in its ongoing session in the absence of more than 140 members.

Required Legislative deliberations.

• Even though the revised versions of the Bharatiya Nyaya Sanhita (BNS, which will replace the IPC), the Bharatiya Nagarik Suraksha Sanhita (which will replace the CrPC) and the Bharatiya Sakshya Bill (instead of the Evidence Act) were introduced after scrutiny by a Parliamentary Standing Committee, they still required legislative deliberations in the full chambers, given their implications for the entire country.

Concerns in the bills

• Many concerns that the Bills gave rise to, could not be raised in Parliament as a result. A conspicuous aspect of the new codes is that barring reordering of the sections, much of the language and contents of the original laws have been retained.
• However, Union Home Minister Amit Shah’s claim that the colonial imprint of the IPC, CrPC and the Evidence Act has been replaced by a purely Indian legal framework may not be correct, as the new codes do not envisage any path-breaking change in the way the country is policed, crimes are investigated and protracted trials are conducted.

Improvements in the bill

• The improvements in the BNS include the removal of the outdated sedition section, as exciting disaffection against the government or bringing it into hatred and contempt is no more an offence, and the introduction of mob lynching (including hate crimes such as causing death or grievous hurt on the ground of a person’s race, caste, community, sex, language or place of birth) as a separate offence.
• Another positive feature is the government ignoring the panel’s recommendation to bring back adultery, struck down by the Supreme Court, as a gender-neutral offence.
• On the procedural side, some welcome features are the provision for FIRs to be registered by a police officer irrespective of where an offence took place and the boost sought to be given to use of forensics in investigation and videography of searches and seizures.

What is questionable in the bill?

• It is questionable whether ‘terrorism’ should have been included in the general penal law when it is punishable under special legislation. Grave charges such as terrorism should not be lightly invoked.
• A significant failure lies in not clarifying whether the new criminal procedure allows police custody beyond the 15-day limit, or it is just a provision that allows the 15-day period to spread across any days within the first 40 or 60 days of a person’s arrest.

Conclusion

• Revisions in law cannot be made without a vision for a legal framework that addresses all the inadequacies of the criminal justice system.

Editorial 2: Questionable searches under the Money Laundering Act

Context: The abuse of authority by the central investigating agencies and the abuse of the process of court raise disturbing questions.

Introduction

• The enforcement of the Prevention of Money Laundering Act, 2002 (passed in the background of India’s commitment to the international community to fight the drug menace and terrorism) has caused much consternation especially after its unusual interpretation by the Supreme Court of India in Vijay Madanlal Choudhary and Ors vs Union of India and Ors. (2022).

Supreme Court’s interpretation

• The Supreme Court of India limited its application to “on the wrongful and illegal gain of property as a result of criminal activity relating to a scheduled offence”. It also held that “the property must qualify the definition of “proceeds of crime” under Section 2(1)(u) of the 2002 Act”.
• It went on to hold that “the authority of the Authorised Officer... to prosecute any person for offence of money-laundering gets triggered only if there exist proceeds of crime within the meaning of Section 2(1)(u) of the 2002 Act and further it is involved in any process or activity”.
• The Court emphatically held that “Not even in a case of existence of undisclosed income and irrespective of its volume, the definition of ‘proceeds of crime’ under Section 2(1)(u) will get attracted, unless the property has been derived or obtained as a result of criminal activity relating to a scheduled offence”.
• The law thus declared by the Court, which binds one and all under Article 141, is clear — “If the offence so reported is a scheduled offence, only in that eventuality, the property recovered by the Authorised Officer would partake the colour of proceeds of crime under Section 2(1)(u) of the 2002 Act, enabling him to take further action under the Act...”. In clarity, the Court declared, “Absent existence of proceeds of crime, as aforesaid, the authorities under the 2002 Act cannot step in or initiate any prosecution”.

Many cases of Enforcement Directorate (ED) searches, seizures and arrests

• The media has reported many cases of Enforcement Directorate (ED) searches, seizures and arrests — which are outside the ED’s powers, as held by the Court. Naturally, the conduct of the ED in this regard has resulted in severe criticism from the Supreme Court, as seen in Pankaj Bansal vs Union of India, recently.
• The Court, while setting aside the arrest orders along with orders of remand passed by the Sessions Judge Panchkula, and affirmed by the High Court of Punjab and Haryana, made damning observations: “This chronology of events reflects rather poorly, if not negatively, on the ED’s style of functioning. The ED, mantled with far-reaching powers under the stringent Act of 2002, must be seen to be acting with utmost probity, dispassion and fairness. In the case on hand, the ED failed to exercise its powers.
• The Court added, “Surprisingly, no consistent and uniform practice seems to be followed... as written copies of the grounds of arrest are furnished to arrested persons in certain parts of the country but in other areas,... the grounds of arrest are either read out to them or allowed to be read by them.”

Damaging to federalism

• Yet, what is happening in some States that are governed by the Opposition is damaging to federalism. The Mines and Minerals (Development and Regulation) Act, 1957 is not covered by the Schedule of the PMLA Act and offences in relation thereto are not “Scheduled Offences”.
• Yet, the ED in these States is conducting inquiries with respect to the alleged illegal mining of sand, a minor mineral under the control of States and not the Union. The Mines Act has extensive provision to curb evasion and enables penalty and prosecution for any illegal extraction of minerals . But that power is with the State government.

A selective targeting

• So now, the CBI and the ED have absolute freedom to do what is not authorised under the judgments of the Supreme Court. Interestingly, the ED in its affidavit before the High Court said that the “the Accused Pankaj Mishra is the MLA representative of Jharkhand Chief Minister and is a very influential person.”
• So, the design is clear. Clearly, the process of the law is being abused in an innovative and lethal manner to target the political party ruling Jharkhand. Efforts are on by the ED to implicate other governments in some States including Tamil Nadu.
• The ED is singularly inactive in States run by the Bharatiya Janata Party, where the incidents of illegal mining are far more serious. In Maharashtra, Haryana, Uttar Pradesh, Gujarat and Madhya Pradesh, the cases of illegal mining are 6,743, 324, 23,787, 8,713, and 9,361, respectively.

Questions raised

• This raises extremely disturbing questions not only about the abuse of authority by central investigating agencies but also the abuse of the process of court being permitted all along.
• If mines and minerals are not part of “scheduled offences” and in a case where “proceeds of crime” are non-existent, it is shocking that courts should allow such investigations to be carried out by the CBI and the ED. It is even more sad that the courts do not ask these agencies about such actions in other States but are ever so willing to condemn the administration in Opposition-governed States.

Conclusion

• Federalism is a part of the basic structure of the Constitution of India, but its foundation is being slowly chipped away through such processes.
• Everybody, including constitutional institutions, appears to have forgotten what the Constitution stands for. Let us hope and pray that these machinations are curbed forthwith to save the further down slide of our cherished democracy.