Former Law Minister Kapil Sibal , in an interview, says the Prevention of Money Laundering Act (PMLA) was part of an international obligation to deal with terror and narcotics financing. But the Narendra Modi government has broadened the ambit of the law and that allows ‘misuse’. Edited excerpts:
Your recent statement that “after 50 years of practice you don’t see much hope in the Supreme Court” courted controversy. Many from the legal fraternity attacked you for lowering the majesty of the court.
I don’t need to add anything. If one listens to the speech carefully, one will understand the context. I don’t wish to make any further comment on that issue at all.
Be it the Pegasus spyware issue or an arrest made under the sedition law, the Supreme Court has intervened in matters where an individual’s rights are concerned. Some though question its impact on the ground. What is your take?
First of all, I give great credit to the Supreme Court for having intervened in these matters. At least we don’t have any fresh sedition cases filed now and no fresh arrests are being made based on sedition. There is also the fact that Supreme Court set up a committee to examine whether or not our liberties were being interfered with through Pegasus malware. So I think these are great positives. And quite in contrast with what had been happening earlier. The present Chief Justice, N.V. Ramana, has certainly taken some steps to protect our citizens. But the problem is, and this is something that I have been saying for many years, that the declaration of the law by a court doesn’t necessarily transform it into reality. Those who implement the law need to be sensitive to what the Supreme Court says and so, therefore, there is a big gap between the declaration of the law and its implementation on the ground. There’s always a mismatch. Take the declaration of law concerning privacy: are courts in India protecting people’s privacy? For example, mobile phones are being seized and messages are being looked at during raids even though it has nothing to do with the genesis of why a warrant has been issued to raid an individual. I think that those who enforce the law need to be sensitive to these concerns, but they are the most insensitive.
Many of these raids are taking place under the Prevention of Money Laundering Act (PMLA). The Supreme Court upheld the Enforcement Directorate’s (ED) power to search, seize and arrest, though they have now agreed to review some provisions. You have been a former Law Minister and critics say many of the stringent provisions under PMLA were introduced during the Congress government.
I think there is a misconception there. The PMLA, as it originally stood, was in the context of money laundering which emanates from activity, dealing with terrorism and narcotics. Those are the two international conventions based on which we were part of an international treaty. Under these, the laws were enacted. It is an international obligation, we had to draft a law and it was done. What happened thereafter was that the list of scheduled offences was exponentially increased. Worse, amendments were brought into the law by the present government through money Bills and these amendments could never be discussed in the Rajya Sabha. Some of these amendments give retrospective effect. So, ultimately, it is the ethos of the administration that administers the law. If you implement the PMLA in the context of narcotics and terrorism, you will be able to implement it properly. But if you interpret it in the context of offences like 420 (cheating) of the Indian Penal Code or 302 (murder) or kidnapping, you obviously misuse it.
The Supreme Court is undergoing a transition and will see a change of guard this week itself.
I have to say that the present Chief Justice of India (CJI) has somewhat restored the credibility of the office. But I don’t think that the nature of the administration of justice will see a radical change overnight. I think that the direction is right. It is now up to the successor Chief Justices to take this forward. I am very happy that a member of the Bar, Justice U.U. Lalit will be our next CJI. He has a great experience on the criminal side and I think that is where he can make a huge difference by putting systems in place.
