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Supreme Court Balancing Liberty and Security on ED’s Action
Context:
Two recent observations by the Supreme Court of India have highlighted significant issues concerning personal liberty in the context of actions taken by the Enforcement Directorate (ED).
About the two observations of SC
- One concerned the question whether an officer arresting a person on money-laundering charges should demonstrate the necessity for arrest for the action to be deemed valid;
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- The verdict granting bail to Delhi Chief Minister Arvind Kejriwal, ended with a reference to a larger Bench the question whether the ED would have to prove the need or “necessity to arrest” a person, before effecting an arrest.
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- Court’s order is that the authorised officer’s decision on arrest ought to be one that a magistrate or judge can examine.
- The Court reiterated that arrests under the PMLA cannot be on a mere whim; and that decisions during investigation should consider favourable material too, and not merely material against the accused.
- The other issue touches upon a key aspect of contemporary judicial functioning.
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- The court voiced shock at the ease and quickness with which courts were staying reasoned orders granting bail.
- A stay on reasoned orders ought to be rare exceptions based on grounds such as unreasonable by the lower court, and not done as a matter of routine.
Section 19 of PMLA
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Constitutional Provision balancing liberty and security
Liberty
- Preamble :LIBERTY of thought, expression, belief, faith and worship;
- Article 19:Protection of Certain Rights Regarding Freedom of Speech
- Article 21 :Right to Life and Personal Liberty
- Articles 32 and 226 (Right to Constitutional Remedies)
However this is subject to security of nation as mentioned in :
- Article 19(2):Amongst other things it provides reasonable restriction in the interest of security of the state .
- Preventive detention laws under Article 22 ,subject to preventing abuse
- Article 352 : Emergency Provisions
