[PMLA Judgment] I won't be critical of judges who wrote it but I might have taken a different view: Retired Justice L Nageswara Rao

Retired Supreme Court judge Justice L Nageswara Rao said on Monday that while judgment of the Supreme Court upholding provisions of the Prevention of Money Laundering Act (PMLA) is being dubbed as a setback to personal liberty, all is not lost and there are other judgments of the top court safeguarding individual liberty. .Justice Rao said that while he might have struck down the law if he was a judge on the bench, he would not venture so far as to criticise the judges who authored the judgment.“At the outset I should tell you that I am not critical of the judges who have written the judgment or the philosophy of the judgment. Left to me, I should be frank, I might have taken a different view. …I don’t want to go into whether it is wrong or right. Personally I might have taken a different opinion if I was writing the judgment,” he said.The retired judge was speaking at an event organised by The Leaflet on “Life and Liberty: India at 75 years of Independence”.The judge voiced his opinion on the judgment in response to a query on whether by upholding powers of the Enforcement Directorate (ED) the apex court had curtailed personal liberty of citizens. The Supreme Court had, on July 27, upheld the validity of provisions of PMLA. The verdict saw stringent bail conditions in money-laundering cases being upheld, in variance with earlier Supreme Court decisions.Provisions relating to arrest, search, seizure, attachment, use of statements to the Enforcement Directorate (ED) as admissible evidence, and non-requirement to supply Enforcement Case Information Report (ECIR) were all upheld, effectively rendering the Code of Criminal Procedure (CrPC) inapplicable in money laundering cases.Critics have argued that these go against the basic protections afforded by Articles 20 and 21 of the Constitution..After discussing the various issues that had been raised in the judgment, Justice Rao said that the general feeling was that the judgment was a setback to personal liberty.He, however, maintained that there are other judgments of the court which protected liberty.“In December 2021, there was a case before the present CJI where he made a comment that people are unnecessarily being dragged into cases under PMLA by ED and he mentioned that process itself is becoming punishment. So while registering cases under PMLA, he sounded a note of caution that authorities have to be very careful of the consequences of a case being registered and a person not being able to get bail very easily,” Justice Rao pointed out..He added that the concept of liberty, which is evolving over the past 75 years, is clearly to the effect that courts are in favour of protecting the personal liberty of an individual.“The Supreme Court is alive to the problem… Trials take their own time and I have seen in my tenure of 6 years, large number of cases where persons come to us even in offences where sentence is less than 7 years, after 4-5 years that charges are not framed, trial will take a long time, still they are in jail. Concept of liberty has definitely not changed and court definitely is there to protect liberty,” he emphasised..Justice Rao was also asked about his views on the comment by Senior Advocate Kapil Sibal, who had said that he does not have hope in the Supreme Court to safeguard the rights of citizens. Justice Rao disagreed with the same and stated that judiciary continues to be one institution in which public continues to retain some hope as it kept has in check on arbitrary actions of the executive.“If public loses confidence in this institution, then there will be absolutely no checks committed by the executive. Merely because of a few judgments which are not to the liking of certain persons, which they perceive that this might not be in consonance with Article 21 and other fundamental rights, we cannot lose hope in an institution which has been protecting rights of the individuals for the last 75 years,” he said..Justice Rao also pointed out that there were several instances wherein the scope of Article 21 had been expanded and where the cause of underprivileged were taken up only because of interference by courts.“There is no point in losing hope on courts. We just have to put behind any judgment or any feeling of disappointment. And then hope that the Supreme Court continues to do the good work it has been doing in the past 75 years,” he said ending the event on a hopeful note.