1. The Infirmity of Unbridled Power – Reviewing the PMLA Verdict
The editorial critically analyzes the need for the Supreme Court (SC) to review its 2022 judgment that largely upheld the sweeping powers of the Enforcement Directorate (ED) under the Prevention of Money Laundering Act (PMLA). The core argument is that the judiciary must reassert its role as the protector of fundamental rights against executive overreach, particularly regarding the contentious provisions of arrest, search, seizure, and the stringent bail conditions under the PMLA.
I. Undermining Personal Liberty and Constitutional Mandate
- Failure to Protect Liberty: The 2022 judgment in the Vijay Madanlal Choudhary case is viewed as a significant jurisprudential misstep, failing to adequately scrutinize the amendments to the PMLA that severely curtail the personal liberty guaranteed under Article 21 of the Constitution.
- The verdict virtually made the ‘process the punishment,’ a concern repeatedly raised by petitioners, where prolonged incarceration is inflicted merely based on the initiation of an Enforcement Case Information Report (ECIR).
- The Problematic ‘Twin Conditions’ for Bail: The editorial points out the excessive rigour of Section 45, which imposes ‘twin conditions’ for bail, requiring the accused to prove their innocence and demonstrate they are ‘not likely to commit any offence while on bail.’
- This reverses the fundamental principle of criminal law, ‘presumption of innocence,’ placing an impossible burden of proof on the accused, especially when the ED is often not even obligated to share the ECIR, thus crippling the accused’s ability to mount a defence.
- Later SC rulings, granting bail in several high-profile PMLA cases by citing the accused’s right to speedy trial and the principle that ‘bail is the rule, jail is the exception,’ implicitly acknowledge the harshness and unconstitutionality of the PMLA’s application, necessitating a comprehensive review.
- The Status of ED Officials: The 2022 verdict upheld that ED officials are not police officers, thus making statements recorded by them admissible in court.
- This is a significant departure from standard criminal procedure, where statements made to police officers are usually inadmissible to prevent testimonial compulsion, effectively undermining the constitutional bar on self-incrimination (Article 20(3)).
II. Executive Excess and Selective Application
- Unbridled Powers of Search and Arrest: The PMLA grants the ED extensive powers of search, seizure, and arrest without judicial oversight at the initial stage, which the 2022 judgment failed to check.
- The editorial argues that these powers, when exercised without strong judicial safeguards, are prone to executive misuse, turning a potent financial crime law into a political tool.
- Manifest Selectivity in Targeting: The concern of selective targeting of political opponents, critics, and dissenters by the ED has been a recurring theme, suggesting a lack of fairness and impartiality in the law’s application.
- The ED’s low conviction rate (only 15 convictions out of 5,892 cases since 2015, as per one report) further indicates that the law is often used more for the ‘process’ of harassment and prolonged detention rather than for securing final judicial outcomes against money laundering.
- The Overbroad Definition of ‘Scheduled Offence’: The PMLA is predicated on a ‘scheduled offence’ (or ‘predicate offence’). The list of these offences is too broad, including not just grave crimes like terrorism and narcotics but also relatively lesser ones like forgery, cheating, and even copyright infringement.
- This overbreadth allows the ED to initiate money laundering probes even for routine offences, significantly increasing the vulnerability of the common citizen to the PMLA’s harsh provisions.
III. The Judiciary’s Role and the Path Forward
- Reasserting Judicial Review: The review petitions before the SC provide a critical opportunity to course-correct and restore the balance between the state’s need to fight financial crime and the citizen’s fundamental rights.
- The editorial stresses that the Court must not defer excessively to the government’s claim of ‘international commitment’ (e.g., to the Financial Action Task Force – FATF) at the expense of domestic constitutional guarantees.
- International commitments are important but must be implemented in a manner that adheres to the spirit and letter of the Indian Constitution.
- Specific Areas for Review: The review must specifically address and limit the provisions concerning:
- Mandatory sharing of the ECIR with the accused to ensure a fair defence.
- Diluting the twin conditions for bail under Section 45, bringing them in line with the established principle that bail is the rule.
- Imposing stricter judicial oversight on the powers of arrest and search exercised by the ED.
- Moving Beyond the ‘Scourge of Money Laundering’ Rhetoric: While money laundering is a serious crime, the law’s application must not become a ‘hatchet wielded against rival politicians and dissenters.’
- The judiciary must ensure that a sui generis (unique) legislation like the PMLA is used strictly against transnational financial crimes and terror financing, not as a tool for political vendetta or to punish routine crimes. The essence of the law must be preserved without compromising due process and the constitutional fabric.
2. A Shift in Stand – India, Gaza, and Humanitarian Imperatives
The editorial examines India’s evolving and often ambiguous foreign policy stance concerning the Israel-Gaza conflict, particularly focusing on the balance between its historical solidarity with Palestine and its deepening strategic ties with Israel, against the backdrop of an acute humanitarian crisis.
I. The Historical Context and Diplomatic Pivot
- Traditional Stance and the Non-Aligned Legacy: Historically, India has been a strong, principled supporter of the Palestinian cause, rooted in its anti-colonial and non-aligned foreign policy tradition.
- India was the first non-Arab country to recognise the Palestine Liberation Organisation (PLO) in 1974.
- This traditional position was based on the principled demand for a two-State solution with a sovereign, independent State of Palestine.
- The Modi Government’s Balancing Act: The current government has accelerated the strategic and economic partnership with Israel, leading to a visible shift in diplomatic rhetoric.
- This shift was initially marked by a reluctance to explicitly condemn Israeli actions, often leading to abstention votes on critical UN General Assembly (UNGA) resolutions (e.g., the October 27, 2023, UNGA vote).
- The initial rationale for abstaining was the resolution’s failure to include an “explicit condemnation” of the October 7 Hamas attacks.
- The Recent Principled Shift: The editorial notes a critical change when India subsequently voted in favour of a later UNGA resolution demanding an immediate humanitarian ceasefire and the observance of international humanitarian law.
- This vote, despite the resolution still not having a direct mention of the October 7 attacks, signifies New Delhi’s responsiveness to the overwhelming humanitarian catastrophe and mounting global and domestic pressure.
II. The Humanitarian Catastrophe and Moral Imperative
- Unprecedented Civilian Toll: The editorial highlights the horrific scale of the human tragedy, with casualty figures rising relentlessly and a vast majority of Gaza’s population displaced and homeless.
- The use of “unguided” or indiscriminate munitions by the Israeli Defence Forces (IDF) has resulted in disproportionate civilian deaths, a fact acknowledged even by Israel’s principal allies like the U.S.
- Inadequate Humanitarian Access: The flow of humanitarian aid into Gaza has been grossly insufficient, amounting to “a drop in the ocean” for a population of over two million facing acute shortages of food, fuel, and medical services.
- India’s role must move beyond mere vocal support for humanitarian aid to actively leveraging its diplomatic influence to ensure safe, timely, and sustained delivery of assistance.
- Violation of International Humanitarian Law: The deliberate targeting or mass displacement of civilians, and the destruction of essential infrastructure like hospitals and schools, raise serious concerns about potential violations of international humanitarian law.
- As a leading voice in the Global South, India has a moral obligation to be more vocal in demanding adherence to the laws of war and for an end to the collective punishment of Gazan civilians.
III. Diplomacy and the Path Ahead
- From Abstract Support to Concrete Action: While India’s latest UNGA vote is a welcome step, its true test lies in the active role it chooses to play in ensuring the ceasefire is effected and holds.
- New Delhi must leverage its ties with both Israel (developed over the last decade) and the Arab world (its historical allies) to push for de-escalation and a long-term political solution.
- Reaffirming the Two-State Solution: The editorial underscores that the ultimate resolution must be political, based on the two-State solution.
- India’s participation in international forums, such as the High-Level International Conference on the implementation of a two-State solution, must be aimed at paving the way for concrete steps, not just rhetorical affirmation.
- Addressing Regional Instability: The continuation of the conflict, particularly Israel’s operations moving far beyond the stated mandate of eliminating Hamas, poses a grave risk of wider regional instability.
- India has a strategic interest in the stability of West Asia, especially given its energy security dependence and the large Indian diaspora in the Gulf.
- A proactive diplomatic posture is essential to protect these interests and help prevent the conflict from metastasizing. The government must move beyond a passive or overly cautious approach and articulate a clear, morally consistent foreign policy.
3.A Social Safety Net for the Gig Economy – The Road to Formalisation
The editorial critically analyzes the government’s current legislative approach, specifically through the proposed national law and the Code on Social Security, 2020, to provide a social safety net for gig workers, arguing that the existing framework suffers from a fundamental flaw: the failure to explicitly define the employment relationship.
I. The Lacuna in the Legal Framework
- The Ambiguity of Employment Status: The core issue is the ambiguous employment relationship between gig workers (e.g., delivery riders, ride-share drivers) and “aggregators” (the platform companies).
- Gig workers are currently categorised as ‘independent contractors’ or ‘freelancers’ rather than ’employees’ in the Code on Social Security, 2020.
- This classification, which the editorial suggests is often a deliberate obfuscation by aggregators, excludes them from the traditional, institutional social security and labour protections.
- Limited Protection in the Social Security Code (2020): While the Code is the only one of the four new labour codes that acknowledges gig workers, it treats them as a subset of the informal sector.
- It only provides for the Central Government to formulate specific social security schemes for them, but it does not grant them the full suite of institutional social security benefits that formal employees enjoy.
- This disparity is evident in benefits like maternity leave: formal employees receive 26 weeks of paid leave, whereas gig workers are entitled only to cash benefits under the proposed schemes, signifying a second-class status.
- Exclusion from Core Labour Rights: By virtue of their ambiguous status, gig workers are excluded from fundamental labour protections designed for employees, including:
- Minimum Wage Protection: They lack guaranteed minimum wages, leaving them vulnerable to exploitative pay structures determined by algorithms.
- Occupational Safety and Health Standards: They are often exposed to significant on-the-job risks (traffic, extreme weather) without the protection of occupational safety laws.
- Right to Collective Bargaining/Unionisation: Their isolated status makes it difficult to unionise and collectively negotiate for better working conditions and remuneration.
II. Limitations of the Proposed Welfare Model
- The Welfare Board Approach: The proposed legislation includes establishing a Welfare Board Model and mandating a 1%-2% contribution from aggregators towards a social security fund.
- The editorial argues that this ‘welfare model,’ while well-intentioned, is an insufficient workaround that attempts to fix a problem whose root cause—the failure to define the employer-employee relationship—remains unaddressed.
- Similar models for other informal sectors have struggled without the foundation of a formal employment definition.
- Focus on Registration, Not Rights: The proposed law mandates the registration of gig workers on the e-Shram portal and requires aggregators to take the lead in this process, alongside safeguards like a 14-day notice for termination.
- While registration is a positive step for data collection and basic insurance eligibility, it cannot substitute for the fundamental rights and protections that come with a recognised employment status.
- The Need for Algorithmic Transparency: Exploitation in the gig economy is often mediated through opaque, automated systems (algorithms) that determine pay rates, task allocation, and even penalties.
- For any framework to be truly effective, it must include mechanisms for algorithmic transparency and a robust dispute resolution mechanism to protect workers from arbitrary actions.
III. The Way Forward: Reclaiming the Employment Relation
- Defining Aggregators as Employers: If the Union Ministry is serious about comprehensive protection, it must take the crucial step of explicitly defining the employment relationship in gig and platform work.
- The editorial advocates for recognizing “aggregators” as employers and the gig workers as ‘workers’ or ’employees’ to remove the current veil of ‘independent contractor’ status.
- Following International Precedent: The editorial points to the 2021 UK Supreme Court’s Uber ruling, which classified Uber drivers as ‘workers’ entitled to minimum wage and paid holidays, as a vital precedent.
- India should follow this global trend, which prioritizes the economic reality of the relationship (control, dependence, and lack of true independence) over the legal terminology used by the platforms.
- Inclusion in All Labour Codes: Once the employment relation is clearly defined, the need for duplicated, separate welfare schemes diminishes.
- The editorial concludes that the key is to ensure that gig workers are included in all four Labour Codes (on Wages, Industrial Relations, Social Security, and Occupational Safety) to grant them institutional protections like minimum wages, maternity benefits, and safety standards, thus promoting the formalisation of this critical, growing sector.
