Article 20(3) of the Indian Constitution protects accused persons from being compelled to make self-incriminatory statements. The protection from self-incrimination along with the protection from double jeopardy as enshrined under Article 20(2) of the Constitution forms the fulcrum of the criminal justice system in India. As a necessary corollary, any confessional statement made before a police officer or out of coercion during criminal proceedings is inadmissible as evidence, and the same has been cemented in Sections 24 to 26 of the Indian Evidence Act, 1872 (“Evidence Act”).
The provisions under the Prevention of Money Laundering Act, 2002 (“PMLA”) take a sharp deviation from the constitutional protection from self-incrimination. The vires of the said provisions, among others, were challenged before the Indian Supreme Court (“SC”). The SC settled the issue by way of its decision in Vijay Madanlal Choudhary and Others v. Union of India and Others (“Judgment”), after almost a decade since the earliest batch of the petitions were filed. Consequently, the SC upheld the status quo. Though the Judgment is presently under review before the SC, this article respectfully disagrees with the conclusion arrived at by the SC in the Judgment with respect to self-incrimination.
Relevant provisions under the PMLA
1. 1. Broadly, the PMLA criminalises laundering and aiding in laundering of money generated from commission of offences listed in its schedule. The offences are referred to as ‘scheduled’ or ‘predicate’ offences. Therefore, an offence under the PMLA, must be preceded by commission of a predicate offence through which money said to be laundered was generated. The Enforcement Directorate (“ED”) has been vested with the power to inter alia investigate offences under the PMLA.
Through Section 50 of the PMLA, the ED is empowered to summon a person, compel production of documents, and give evidence. For this purpose, the ED is vested with the powers of a civil court. Any person who is summoned under the PMLA is bound to state the truth, produce documents, or give evidence as the case may be.
Section 63 penalises a person for inter alia not stating or refusing to state the truth upon being summoned, or omitting or refusing to produce documents, give evidence, sign statements made by him/her. Further, a person who does not obey the directions under Section 50 (supra) is liable to be proceeded against under the Indian Penal Code (“IPC”) for disobeying the order of a ‘public servant’, i.e., the ED.
Read More: https://tlegal.com/blog-details/the-right-to-remain-silent-under-the-prevention-of-money-laundering-act-2002
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