The recent judgment of the Supreme Court upholding the validity of various provisions of the PML Act (for short "the Act") has the effect of deleting from the Constitution Article 20 (3) so far as the Act is concerned.

The Act has formulated a scheme with Sections 24, 50 and 45 of the Act as the essential provisions to deny to the citizens very valuable fundamental rights which the Constitution has expressly conferred on them. To begin now, the proceedings under the Act commences with a note described as ECIR (Enforcement Case Information Report) prepared by the Department.

It is akin to FIR under Cr.P.C., with which criminal proceeding commences. However, it is claimed that this ECIR is a secret document and anyone concerned in the case including the accused is not entitled to know its contents and copy of the same is not available. Only the court can look into it secretly to form necessary opinion to remand the accused to custody. In the case of FIR, the document is open to the public and it is mandatory to furnish the original to the court. None can alter it or tamper with it later on.

In the case under the Act, while court can look into it, the accused can have no access and no opportunity to contradict the contents. Whatever is stated therein has to be accepted as true to remand the accused to custody, thus, depriving him of personal liberty which can be done only by procedure established by law which has to be just, fair and reasonable. Unfortunately, the Supreme Court has now upheld the contention of the ED to keep ECIR as a secret document. In this regard, Supreme Court has given preference to secrecy as against fairness and transparency.

The next step relevant for our purpose is Section 50 of the Act which authorises the authorities to summon a person to give evidence on oath. The person may be a witness or accused which is not specified at that stage.

As already stated, ECIR is not shown and hence, the said information is withheld from the deponent. The person summoned is bound to appear and answer all questions on oath. Not only right of silence is denied to him but he is also compelled to give statement which may incriminate him. He will be liable for perjury if that statement is found to be not true. Finally, such a statement made is liable to be used as evidence in further proceedings, even against the maker of the statement which can form the basis for his arrest.

No doubt, the authority summoning the person would normally know who is the suspected accused in the case. Even ECIR also may show that. More or less, the accused in the predicate offence is almost sure to be arrayed as accused in the present case, though he may not have been shown as an accused formally when the statement is recorded. The normal practice followed so far is to summon the person proposed to be arrayed as accused under Section 50 and record his statement. (This goes on for days together). After recording of his statement, he is formally arrested and shown as accused. This unhealthy practice is adopted to circumvent the law in a dubious manner and deny to the accused the fundamental right guaranteed to him by Article 20 (3) of the Constitution.

Article 20 (3) of the Constitution of India reads as follows:-

"No person accused of an offence shall be compelled to be a witness against himself." This is known as protection against self-incrimination.

Though such an evil design is apparent, the Supreme court while considering the validity of Section 50 has held that the protection under Article 20 (3) is not available to him merely because he is not formally arrayed as an accused at that stage. The Supreme Court instead of leaning in favour of the citizen to protect fundamental right has chosen to accept a highly technical interpretation ignoring the lofty ideals underlying the constitutional provision. The ultimate effect of the judgment is to allow the Government to circumvent a constitutional provision guarantying fundamental right to a citizen.

To achieve the very same object, the Supreme Court also held that the authorities under the Act are not Police Officers within the meaning of Section 25 of the Evidence Act which renders inadmissible any confession made by an accused to a police officer. Though authorities under the Act have the power not only of search and seizure but also of arrest and conducting investigation, Supreme Court has held that they are not police officers so that statements recorded under Section 50 of the Act are not covered by Section 25 of the Evidence Act.

In doing so, the Supreme Court has erroneously failed to follow the earlier judgment of the Supreme Court in the case of Tofan Singh [ (2020) SCC Online 882] wherein under similar circumstances the Court held that the officials under the NDPS Act are police officers and hence confessions or self-incriminating statements made by them at any stage are hit by Section 25 of the Evidence Act and hence inadmissible.

Yet another provision which is contrary to the well established principles of Criminal Law is Section 24 of the Act. This section places the burden on the accused to prove his innocence. Generally, it is for the prosecution to prove the case against the accused beyond all reasonable doubt. There is always a presumption of innocence in favour of the accused.

Further, a more harsh provision is Section 45 of the Act, providing for bail. This provision is re-enacted after the previous provision was struck down by the Supreme Court. However, making verbal changes substance of the previous provision remains. The provision enables grant of bail only if the court is satisfied that he is not guilty. Thus, the burden is shifted to the accused. The Section also goes contrary to the principle "bail is the rule and jail is the exception" which has been enunciated by the Supreme Court itself. Validity of even this provision is upheld.

In the ultimate analysis, the Supreme Court has allowed the Government to achieve its evil design to render Article 20 (3) of the Constitution irrelevant and otiose so far as the Act is concerned. One is reminded of the judgment of the Supreme Court in ADM Jabalpur case where the court upheld the right of the government to suspend fundamental right to Life and Liberty during the emergency.

The present case is yet another instance where the Supreme Court has upheld the validity of several draconian and oppressive provisions of the Act which enable executive excesses and denies the citizens fundamental right guaranteed under the Constitution.

Hence, it is necessary that the judgment in question should be reviewed and reversed, at an early date.

Author is a Senior Advocate at Karnataka High Court and former Advocate General of Karnataka

[The opinions expressed in this article are those of the author. Verdictum does not assume any responsibility or liability for the contents of the article.]