"Very unfortunate": Justice Rohinton Nariman on Supreme Court 3-judge bench overruling his earlier judgment on PMLA bail

Retired Supreme Court judge Justice Rohinton Fali Nariman on Thursday criticised the recent 3-judge bench decision of the Supreme Court upholding various stringent provisions of the Prevention of Money Laundering Act (PMLA) including bail provision. .Justice Nariman said that the 3-judge bench judgment overruled his own earlier judgment of 2017, which had read down stringent bail conditions of PMLA and it was "very unfortunate" because it has now become difficult to get bail in money laundering cases..It, therefore, enables government to use coercive machinery of the State like the Enforcement Directorate and Income Tax Department, which can have a chilling effect on free speech, he stated.."The Enforcement Directorate slaps a money-laundering case on you. And because of a very unfortunate recent judgment of the Supreme Court undoing my earlier judgment, it becomes very difficult for persons to get bail in these cases. The ultimate conviction rate may be 0.2 per cent, so there is no hope of getting convicted, but you will not be let out on bail. So if the coercive machinery of the State is to be used in this fashion, then there is no doubt that the 'chill effect' spoken about in our judgments comes into play," he said..Justice Nariman was delivering the inaugural Jitendra Desai Memorial Lecture, on the topic, "Freedom of Speech: Contemporary Challenges".The lecture was organised by the Navajivan Trust in Gujarat's Ahmedabad. .The November 2017 judgment delivered by a bench of Justices Nariman and Sanjay Kishan Kaul had struck down Section 45(1) of the PMLA, to the extent 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 had observed that Section 45 is a provision that 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 last year by a bench of Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar..Incidentally, former Chief Justice of India (CJI) UU Lalit had in November last year endorsed the view taken by retired Justice Nariman in the Supreme Court's 2017 judgment..The former CJI had highlighted that in Indian criminal jurisprudence, the principle is not guilty, until proven to be guilty. .Justice Nariman in his speech underscored the value of the freedom of speech and expression in his speech. He pointed out that the country currently has a major problem of having no opposition worth the name, and said that the media was not playing the critical role of the government that it should. "I find that today, India is at a cross-roads. We have the major problem of there being no opposition worth the name. We also find that the print media and the television media does not criticise government the way it used to. These are facts known to all of us. It may not be stated openly, but they are facts," he stated.Justice Nariman flagged the recent instances of hate speech, saying it interferes with the cardinal value of fraternity and is against the fundamental duty of maintaining harmony and brotherhood.He outlined the various tests and standards that have been laid out by the Supreme Court for the State to legally enforce any restriction on free speech.Read what Justice Nariman said about ban on BBC documentary here.