New Delhi: Removing former Delhi Chief Minister Arvind Kejriwal and 21 others in the politically charged liquor policy case, the court on Friday observed that the judicial task was not to secure a comfortable outcome or endorse the prevailing narrative, but to uphold the rule of law.
She stressed that a measure that allows for long or indefinite imprisonment based on a temporary, untested allegation may “degenerate into a punitive process” and raise “a concern of great constitutional importance,” as individual liberty is “jeopardized” by invoking the Money Laundering Prevention Act.
In the 598-page order, Special Judge Jitendra Singh said: “This court is increasingly faced with a serious and recurring dilemma, where the liberty of an individual is jeopardized by prosecutions initiated under the MLA, on the assumption that the alleged amount constitutes ‘proceeds of crime’ arising out of a scheduled offence.”
He said that this case is gaining increasing importance as the accused is arrested for the crime of money laundering and is subsequently required to overcome the stringent double conditions stipulated for granting bail, leading to long imprisonment even at the pre-trial stage.
“It is noted that in many cases, the Enforcement Directorate initiates a complaint to the prosecution in the first place to avoid the legal consequence of default bail, without the investigation of the scheduled crime reaching its conclusion,” the judge said.
He said it was often observed that the investigation into the original crime remained inconclusive, and even the final report was awaited.
The judge said: “This same court is witness to a case in which the money laundering proceedings have reached the final stage of pleadings relating to the charge, while in the original crime, the investigation is still ongoing to determine whether any crime has been committed at all.”
He pointed out that it is worth noting that the accused in the Pakistan People’s Liberation Army case remained in detention for a long time.
“This anomaly raises serious legal and constitutional concerns, as the continuation of proceedings under the Anti-Money Laundering Act remains conditional on the continuation of the prescribed offence,” Justice Singh said.
He said that despite the established legal position that the crime of money laundering cannot continue independently and requires the construction of a foundational edifice for a legally sustainable predicate crime, the prevailing practice revealed a worrying reversal.
The judge observed that in such cases, the powers of arrest and prolonged detention were invoked even before the basic facts relating to the established offense were judicially tested.
“This creates a situation where an individual is deprived of his or her personal liberty based on an allegation whose legal sustainability remains uncertain and depends on the future outcome in a parallel investigation,” he said.
Justice Singh stressed that a procedure that allows for long or indefinite imprisonment on the basis of a provisional and untested allegation is fraught with the risk of “turning into a punitive process” rather than a regulatory or investigative process.
“Liberty, once curtailed, cannot be meaningfully restored by a subsequent acquittal, nor can the passage of time compensate for the loss caused by unjustified pretrial detention,” he said.
The judge stressed that the aim of the AMLA was undoubtedly legitimate and compelling, and stated that statutory authority, no matter how broad, cannot override constitutional guarantees.
He added: “Therefore, the exercise of this power must be consistent with the well-established principle that arrest and long-term imprisonment constitute exceptions and not the rule.”
The judge said there was a need to develop a framework to strike a delicate balance between the sovereign interest in effectively investigating economic crimes and the inviolable right of the individual to personal liberty.
He said: “While the temporary seizure of the alleged proceeds of crime may be justified to preserve the subject matter of the investigation, the coercive procedure of arrest and the consequent application of onerous bail conditions cannot be allowed to operate mechanically in the absence of a crystallized and judicially recognized predicate offence.”
Special Judge Singh stressed that the balance between the power of the investigating agency and the right to life and personal liberty was not a matter of “legislative grace”, but a “constitutional matter”. Any failure to maintain this balance would likely undermine the rule of law and public confidence in the administration of criminal justice, he said.
The judge cited Martin Luther King Jr.’s quote that “injustice anywhere is a threat to justice everywhere” and the legal principle that “let justice be done even though the sky falls,” to make his point.
“These principles serve as a constant reminder that the judicial task is neither to ensure a comfortable outcome nor to uphold the prevailing proposition, but rather to uphold the rule of law.
He added: “Only by adhering to these ideals is the citizen’s confidence in the administration of justice maintained. With this assurance, and in awareness of this commitment, the file is directed to the registration room.”
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