Marriage Equality and PMLA: A Tale of Two Supreme Court Judgments

Why do separation of powers, and a potential 'cascading effect' seem to be a deterrent in some cases and not others?

Sure, the Indian polity is governed by the doctrine of separation of powers. The executive is supposed to enforce the law, the judiciary is to interpret it and the legislature alone can tinker with it. But then, why does this not always seem to be the case? And why does the 'cascading effect' appear to be a deterrent in some legislations and not others?

(Photo: The Quint)

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I recently wrote a poem that began with the lines: Your words mean nothing if they end with a no, do you see — the sea of broken hearts that bleed the colours of the rainbow?

Naturally, this poem was written in the aftermath of the apex court's judgment in the marriage equality case: a judgment so rife with contradictions that it might as well have been penned by a great romance novelist.

You'll just keep wondering "Will they, won't they" till the very end. Spoiler: they won't.

Individual differences of opinion aside, the five-judge bench talked about the discrimination meted out to same-sex couples, and made all the right noises, some said same-sex couples have a right to a civil union, others said well, not a civil union, but a relationship.

But all of them, all together, altogether refused to legalise same-sex marriage, effectively leaving the ball in the legislature's court: a court that (in case you were confused) is not a court of law.

The petitioners had asked the Supreme Court to read the words "man" and "woman" in Section 4 of the Special Marriage Act (SMA), in a gender-neutral way, so that same-sex couples could get married under the Act. But the court said no, they cannot.

A key reason why, as articulated by Chief Justice of India DY Chandrachud: “If this Court takes the second approach and reads words into the provisions of the SMA and provisions of other allied laws such as the ISA and HSA, it would in effect be entering into the realm of the legislature…. The Court in the exercise of the power of judicial review must be careful not to tread into the legislative domain.”

Justice SK Kaul, in his opinion, added: "Tinkering with the scope of marriage under the SMA can have a cascading effect across these disparate laws.”

But Wait...

Sure, the Indian polity is governed by the doctrine of separation of powers. The executive is supposed to enforce the law, the judiciary is to interpret it, and the legislature alone can tinker with it.

But then, why does this not always seem to be the case? And why does the 'cascading effect' appear to be a deterrent in some legislations and not others?

For instance — in Vishakha vs State of Rajasthan, the apex court observed that there was no law for the protection of women from sexual harassment in workplaces, and so it itself went on to create a law in the form of guidelines (to hold the fort until the legislature came up with its own).

Of course, one agrees with what is said about that in the present (marriage equality) judgment:

"Central to the idea of issuing directions or guidelines in Vishaka was the felt need to address a living concern — that of providing redressal against socially repressible conduct suffered by women in the course of employment."

It is also true that the Supreme Court got so intrinsically involved in Vishakha in order to fill a gaping void. In the present case, the Special Marriage Act already exists, and to read different words into it would be a different matter.

But haven't there also been cases when the top court has not hesitated to read more into an existing law? To answer this question, one might not have to look too far back.

In their judgment (Vijay Madanlal Choudhary vs Union of India, 2022) upholding several stringent provisions of the Prevention of Money Laundering Act (PMLA), the apex court felt it was entirely acceptable to read 'and' as 'or'.

So, What Happened in the PMLA Judgment?

Section 3 of the PMLA defines the offence of Money Laundering. It says:

"Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the [proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming] it as untainted property shall be guilty of offence of money-laundering."

We have italicised 'and' in the above definition as that is the word of consequence.

In 2019, by way of a finance bill, an explanation was inserted into this section which said:

"a person shall be guilty of offence of money-laundering if such person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following processes or activities connected with proceeds of crime, namely:--

(a) concealment; or

(b) possession; or

(c) acquisition; or

(d) use; or (italicised again for your attention)

(e) projecting as untainted property; or

(f) claiming as untainted property,

in any manner whatsoever..."

What this means is that in order to be guilty of money laundering you don't have to use proceeds of crime while projecting/claiming it to be untainted property. The mere use of proceeds of crime (regardless of how you project it) will still make you guilty of the offence. As will the act of projection/claim by itself.

The petitioners had challenged this, amid other challenges to the provisions inserted by the Finance Bill, for further widening the ambit of an already stringent law under the garb of an explanation. (Remember how before 2019, it only said and?)

But in the court's view, the explanation was only "clarificatory" in nature and just a reinforcement. "It does not entail in expanding the purport of Section 3," the bench led by Justice AM Khanwilkar said.

"Projecting or claiming the proceeds of crime as untainted property, in itself, is an attempt to indulge in or being involved in money-laundering, just as knowingly concealing, possessing, acquiring or using of proceeds of crime, directly or indirectly. This is reinforced by the statement presented along with the Finance Bill, 2019 before the Parliament on 18.7.2019 as noted above."

However, many legal experts have questioned this view.

Aspects of PMLA Warranting a Relook

Urging the apex court to refer it to a larger bench for reconsideration, Senior Advocate Kapil Sibal told the court last week:

"The main section says 'and' and the explanation says 'or'. Under principles of interpretation you can't read 'or' in the explanation and 'and' in the main section."

It might be of consequence to add here that there are several other aspects of PMLA that might warrant a relook as well.

In fact, shortly prior to his retirement, former CJI NV Ramana had specifically mentioned two provisions of the legislation that prima facie required a review:

One, regarding the non-providing of the Enforcement Case Information Report (ECIR), which is quite like the FIR, but the accused doesn’t have an automatic right to access it; and two, reversal of the burden of proof and presumption of innocence.

Bail under the PMLA is also hard to come by, owing to the "twin" condition under Section 45 of the Act. It says a court can only grant bail if it is satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence AND that he is not likely to commit any offence while on bail.

Also, without accessing a detailed ECIR, and with the burden of proof being on her – how likely is an accused to successfully defend herself at bail stage against the allegations by a resourceful state, while convincing the court that she will not commit any offence in the future?

And then you read 'and' as 'or', and the shadow of PMLA grows darker still.

'No Hesitation'?

Most pertinent to our present discussion, however, is the apex court's claim, in the Vijay Madanlal judgment, that it had zero hesitation whatsoever in construing 'and' as 'or'.

"Independent of the above (take on the nature of the explanation), we have no hesitation in construing the expression “and” in Section 3 as “or”, to give full play to the said provision so as to include “every” process or activity indulged into by anyone, including projecting or claiming the property as untainted property to constitute an offence of money-laundering on its own."

But, as per the marriage-equality judgment:

"In India, there is no legislation which permits this Court to depart from legislative intent and read words into a legislation such that it is compliant with the Constitution." (emphasis added)

So, should what applies to SMA not hold true for PMLA?

Well, for what it's worth, at least the apex court is willing to examine pleas seeking reconsideration of the PMLA judgment. As eloquently articulated by Justice SK Kaul, in his verbal response to the Solicitor General's protestations:

"National interest can be sometimes in hearing the matter also."

(With inputs from Livelaw.)

(Mekhala Saran is studying Global Media and Digital Communications at SOAS, University of London. She was formerly The Quint's Principal Correspondent - Legal. Find her on X @mekhala_saran. This is an opinion piece. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)