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The Hindu Editorial

22-December-2023

1. Questionable searches under the Money Laundering Act.

Topic: GS2 – Indian Polity – Federalism
UPSC aspirants must comprehend PMLA intricacies, judicial interpretations, and federalism implications for a nuanced understanding of governance challenges.
Context:
  • The Prevention of Money Laundering Act (PMLA) 2002, interpreted by the Supreme Court, focuses on “proceeds of crime” related to scheduled offences.
  • Recent Enforcement Directorate actions faced criticism, prompting judicial scrutiny.
  • Instances of selective targeting in Opposition-governed states raise concerns about federalism erosion and constitutional principles’ violation.
 Background:
  • Prevention of Money Laundering Act, 2002 (PMLA) enacted to combat drug and terrorism financing.
  • Supreme Court’s interpretation in Vijay Madanlal Choudhary case limits PMLA to “wrongful and illegal gain” related to scheduled offences.
Key Supreme Court Ruling:
  • Application limited to “proceeds of crime” under Section 2(1)(u) of the PMLA.
  • Only triggered if property derived from criminal activity related to a scheduled offence.
  • Undisclosed income, regardless of volume, not covered unless linked to criminal activity
Enforcement Directorate Criticism:
  • Media reports reveal ED actions beyond its powers, leading to Supreme Court criticism.
  • Damning observations on ED’s conduct, emphasizing the need for probity, dispassion, and fairness.
 Recent Judicial Developments:
  • In Pavana Dibbur vs The Directorate of Enforcement, Court reinforces the importance of “proceeds of crime” for PMLA offences.
  • Instances of procedural violations and changes in notice-issuing Bench raise concerns.
Selective Targeting and Federalism:
  • Instances of ED targeting Opposition-governed States for inquiries not related to scheduled offences.
  • Abuse of authority and court processes noted in Jharkhand case, raising questions about federalism erosion.
  • ED’s inactivity in BJP-governed States with serious illegal mining cases raises disturbing questions.
Concerns and Implications:
  • Violation of constitutional principles and abuse of authority by central investigating agencies.
  • Courts permitting investigations not related to scheduled offences or proceeds of crime in certain States.
  • Federalism foundation eroding; calls for curbing such abuses to preserve democracy.
Conclusion:
  • The recent legal developments highlight concerns over the limited scope of the Prevention of Money Laundering Act, potential misuse by investigating agencies, and the erosion of federalism, underscoring the need for corrective measures to preserve constitutional principles and democratic integrity.
Prevention of Money Laundering Act, 2002 (PMLA)
  • The Prevention of Money Laundering Act (PMLA) was enacted in India in 2002 to combat money laundering and related offenses.
  • It aims to prevent the generation of black money and the utilization of illicit funds for illegal activities.
  • PMLA mandates the identification, verification, and maintenance of records for clients by financial institutions.
  • The law empowers investigative agencies to seize and confiscate proceeds of crime.
  • It aligns with international efforts to combat money laundering and fulfills India’s commitment to anti-money laundering initiatives
Practice Question: Discuss the key objectives of the Prevention of Money Laundering Act, 2002 (PMLA), and analyze its significance in combating financial crimes in India. (150 words/10 m)

2. New laws have positive features, but bring no path-breaking change.

Topic: GS2 – Indian Polity.
Parliament’s hasty passage of criminal law bills raises concerns about inadequate deliberations, impacting India’s legal framework. Important for UPSC understanding.
Context:
  • Three Bills replacing India’s criminal laws passed in Parliament with limited deliberations.
  • Content retention, questionable inclusions, procedural changes, and lack of systemic vision raise concerns about the legislative process’s efficacy.
 Legislative Process and Opposition Concerns:
  • Three Bills replacing India’s criminal laws passed in Parliament amid the absence of over 140 members.
  • Despite scrutiny by a Parliamentary Standing Committee, the absence of robust legislative deliberations limited the discussion on crucial implications.
Content Retention and Ministerial Claims:
  • Revised codes retain much of the language and content of original laws, challenging the claim of a purely Indian legal framework by Union Home Minister Amit Shah.
  • Concerns raised regarding the potential lack of path-breaking changes in policing, crime investigation, and trial procedures.
Key Revisions in Bharatiya Nyaya Sanhita (BNS):
  • Removal of outdated sedition section and inclusion of mob lynching as a separate offense.
  • Positive aspects include the exclusion of the Supreme Court-struck adultery law and the incorporation of hate crimes based on race, caste, etc.
  • Questionable inclusion of ‘terrorism’ in general penal law instead of relying on special legislation.
Procedural Changes and Ambiguities:
  • Introduction of provisions allowing FIR registration by any police officer regardless of the offense location.
  • Emphasis on the use of forensics in investigations and videography of searches and seizures.
  • Ambiguity regarding the extension of police custody beyond the 15-day limit, requiring clarification for legal clarity.
 Critical Evaluation and Systemic Vision:
  • Critique of the legislative process’s failure to adequately address inadequacies in the criminal justice system.
  • It is important to give emphasis on the need for revisions to align with a comprehensive vision for an improved legal framework.
Conclusion:
  • The rushed passage of criminal law bills without thorough deliberation raises apprehensions about potential flaws in India’s legal framework. This issue demands critical attention and reform for a robust system.
PYQ: The role of individual MPs (Members of Parliament) has diminished over the years and as a result healthy constructive debates on policy issues are not usually witnessed. How far can this be attributed to the anti-defection law, which was legislated but with a different intention? (UPSC CSE (M) GS-3 2013) (200 words/12.5 m)
Practice Question: Discuss the implications of the expedited passage of criminal law bills in Parliament, highlighting concerns about limited deliberations and their potential impact on India’s legal framework. Evaluate the significance of this issue in the context of the UPSC examination. (250 words/15 m)
 

3. Should an All-India Judicial Service be created?

Topic: GS2 – Indian Polity-Judiciary
Critical for UPSC as it addresses judicial diversity, representation gaps, federalism concerns, and the future of India’s judiciary.
Context:
  • President Droupadi Murmu suggests AIJS creation for judicial diversity, tackling representation gaps. Challenges include barriers to entry, language proficiency concerns, and doubts about addressing judicial vacancies.
  • Independence and federalism concerns persist, emphasizing the need for holistic reforms in the judiciary.
 Introduction:
  • President Droupadi Murmu suggests the creation of an All-India Judicial Service (AIJS) for judicial diversification.
  • Proposal akin to UPSC model, recruiting judges centrally and allocating them to states.
Representation Challenges:
  • India Justice Report (IJR) 2022 highlights gender and caste disparities in subordinate judiciary.
  • AIJS proposed as a solution to underrepresentation of women, SC, ST, and OBC in judicial roles.
Barriers to Entry:
  • Entrance exam and 7-year practice requirement seen as barriers, especially for underprivileged communities.
  • High Courts impose additional criteria hindering entry, affecting women and excluded classes.
Language Barrier and Contrarian View:
  • Concerns about regional language proficiency for judges as cases argued in local languages.
  • Contrarian view emphasizes bureaucrats’ language training, but judiciary’s unique language challenges noted.
Vacancy Issue and Centralized Service:
  • 5,388 vacant judicial officer posts reported, raising concerns about the effectiveness of the current system.
  • Doubts about AIJS as a solution, citing existing vacancies in the All India Services (AIS).
Age and Career Progression Concerns:
  • AIJS aims to induct lawyers aged 35-45 into the cadre of district judges.
  • Concerns raised about established lawyers’ reluctance to leave state and family, potential talent pool loss.
Attractiveness and Pay Structure:
  • Attractiveness of a national service questioned; preference likely for prestigious State services.
  • Calls for better pay structure to compete with private sector earnings, attracting top legal talent.
Independence and Federalism:
  • AIJS criticized as an affront to federalism, challenges in ensuring State governments and High Courts have a say.
  • Skepticism about overturning existing systems and concerns about constitutional legitimacy.
 Judicial Independence:
  • Current system ensures district judges’ independence through High Court involvement in appointments, transfers, and removals.
  • Doubts about AIJS undermining judicial independence and potential violations of the Constitution’s basic structure.
Addressing Real Issues:
  • Emphasis on addressing the lack of infrastructure and support for judges, especially in non-metro areas.
  • Calls for a smooth career path from district judiciary to High Courts and the Supreme Court to enhance judicial effectiveness.
Conclusion:
  • The proposal for an All-India Judicial Service demands careful consideration, addressing barriers to entry, language challenges, and ensuring judicial independence. Holistic reforms are pivotal for a robust judiciary.
PYQ: Discuss the desirability of greater representation to women in the higher judiciary to ensure diversity, equity and inclusiveness. (150 words/10m) (UPSC CSE (M) GS-2 2021)
Practice Question: Examine the significance of the proposed All-India Judicial Service, its impact on diversity, federalism, and judicial autonomy, suggesting necessary reforms. (250 words/15 m)

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