The supreme law of India, that is, the Constitution, promises every individual the fundamental right to personal liberty under Article 21 and guarantees a fair, neutral trial. Yet, the material reality of our criminal justice machinery tells a fundamentally different story. As of 2026, official data from the Enforcement Directorate demonstrates an alternate reality, with merely 60 cases with complete trials out of 1187 individuals arrested under the Prevention of Money Laundering Act (PMLA), 2002. The liberal illusion of a robust constitutional framework disintegrates under the weight of the PMLA. This statute directly challenges every beautifully written promise made to citizens, transforming the state’s exceptional powers into a permanent reality. This corroborates that the law is politics adorned with beautiful words. This substantial gap of 1187 arrests and only 60 complete trials demonstrate how a statutory framework seemingly designed to facilitate a neutral, fair trial instead provides the Enforcement Directorate the power to detain individuals on mere suspicion and weaponizes the “twin conditions” laid under Section 45 of the PMLA, where the state demands the satisfaction of the court of innocence at the pre-trial stage. The PMLA presumes guilty until proven innocent, which is the antithesis of the presumption of innocence. This perfectly illustrates the state’s mask of “Rule by Law” disguised as the “Rule of Law.”

The Illusion of Neutrality: Political Patronage and The Corporate State

The law enacted to eradicate money laundering from the roots has been a tool for the state to incline toward structural dominance. The ideological conditioning of the power structure to enact a law that ultimately protects corporate entities distorts the view of actual justice. The law that effectively curbs the offence of money laundering has been more of an executive overreach. The PMLA serves quid pro quo governance more than an instrument to eradicate money laundering. Corporate entities that align with the ideologies and favor the ruling political patronage enjoy systematic shielding. The illusion of neutrality, that any individual or corporate entity is equally in danger of money laundering, collapses with the political alignment of some corporate entities. The PMLA is not a neutral instrument against the elimination of money laundering but a selective tool to benefit corporate entities from undergoing investigations. The implementation of money laundering laws removes the mask of neutrality disguised as the elimination of corruption.

But do all corporate entities enjoy political patronage, or are rival entities at risk of financial destruction? Entities that are politically aligned with the government have a higher chance of absconding from investigations. The Enforcement Directorate (ED) has been given the responsibility of conducting investigations by tracing assets to enforce the provisions of the PMLA. The PMLA has enabled the authorities to arrest, seize, and freeze the assets of any individual if they have a reason to believe, without sufficient proof. Sections 5 and 17 highlight the phrase “reason to believe” for the confiscation of property to avoid arbitrariness while leaving it undefined within the PMLA. The phrase “reason to believe” is the absolute sine qua non which vests authority in the Enforcement Directorate to attach the property of a person. This indeterminacy of the phrase led to the exploitation of the provision, leading to its judicial interpretation. The court in Kavita G. Pillai vs The Joint Director states that “reason to believe” needs more than mere suspicion or personal belief. The “reason to believe” should be formed on reasonable grounds to seize or freeze assets. While public interest organizations face heightened judicial scrutiny, many corporate entities are shielded from the aftermath of illegal financial conduct. While many corporate entities have faced severe allegations of operating offshore shell companies, the executive branches have selectively ignored or enforced proceedings against such allegations, notwithstanding the source and standing of the allegation as a “reason to believe” to commence proceedings.

Piercing The Mask of Procedural Fairness: Presumption of Guilt

An accused person is innocent until proven guilty; the entirety of criminal law jurisprudence relies on this foundational principle. The prosecution proves the guilt of the accused beyond any reasonable doubt. In contrast, the PMLA shifts this burden of proof towards the accused, presuming the guilt of the individual even before the commencement of any trials or proceedings. Section 24 of the PMLA divides this presumption into two obligations. Section 24(a) states that the authority or court ‘shall presume’ that the person is involved in proceeds of crime of money laundering, while Section 24(b) states that the authority or court ‘may presume’ in case of any third party is involved in the proceeds of crime of money laundering.

The reverse burden of proof under Section 24 of the PMLA was challenged by citizens in Vijay Madanlal Choudhary vs Union of India for the violation of the fundamental rights of the accused. The hon’ble supreme court upheld the provision stating that the burden of proof does not ‘reverse’ but merely ‘shifts’, where the accused must prove the origin of the property. The court stated that this shifting of the burden of proof cannot be perceived as arbitrary and unconstitutional, concluding it as a reasonable measure to prevent money laundering. This rhetorical judicial distinction relies upon semantic reframing, holding that Section 24 does not reverse the burden of proof but merely shifts the evidentiary burden. Nevertheless, this distinction only creates a linguistic illusion. The distinction from ‘reversed’ to ‘shifting’ does not change the consequences; the accused is practically stripped of the last protection, the presumption of innocence. The substantive impact of this shift on the accused remains unchanged.

The structural brutality of Section 24 operates within a broader institutional framework. Sections 24 and 5 are deeply connected institutional mechanisms. Section 5 empowers the director or deputy director to attach the property of the person, where there is reason to believe, involved in the proceeds of crime. Section 24 becomes operative when the matter goes to the Adjudicating Authority, and the burden of proof shifts to the accused. The executive authorities expect the accused to prove that the property involved was not obtained from the proceeds of crime in court. Consequently, this combination of the reversed burden of proof and attachment of property strips individuals of their rights and assets simultaneously, making the provision constitutionally untenable and functioning as an instrument of state power.

The Veil Upon Liberty: Section 45 And the Twin Conditions

 The rule on which criminal law thrives is reversed; Bail is the rule, Jail is the exception, as laid down by the Supreme Court in State of Rajasthan Vs Balchand @ Baliay, becomes a near-impossible exception under the PMLA. Bail is the rule, yet the conditions under Section 45 of the PMLA make it nearly impossible for bail to be granted. Although bail jurisprudence has been evolving significantly over time, the conditions laid down under Section 45 have been the epicenter of the constitutional decline.

Section 45, on a plain reading, imposes two indispensable conditions for granting bail. The infamous ‘twin conditions’ that are to be followed to obtain bail are that the public prosecutor must be given an opportunity to oppose the bail application and, if opposed, the court must be satisfied that the accused is not guilty of the offence and unlikely to commit any offence while on bail. These conditions make it clear that the threshold for obtaining bail is exceptionally stringent, as the accused must prove their involvement in obtaining the property at the prima facie stage. Proving that there is no involvement of the property in the proceeds of crime and the satisfaction of the court at the initial stage, which evidently lacks materials, is a manifestly arbitrary condition. When the only substantive material before the court is the ECIR (Enforcement Complaint Information Report). The ECIR is prepared solely by the Enforcement Directorate, which collects all evidence. Requiring to prove innocence with only the report from the Enforcement Directorate before the court and satisfy a judge to grant them bail is a disproportionate structural requirement.

The official data from the Enforcement Directorate projects a juridical reality, with merely 60 complete trials out of 1187 total arrests. This ratio of the number of arrests to the number of complete trials is a myth to the right to a speedy trial under Article 21. When trials take decades to complete and bail is a near-impossible exception under Section 45, the laws stop being a preventive measure and become a way to trap individuals at will. A law where incarceration is the only truth and reality for individuals detained by the executive authority. The assumption that one can prove their innocence during incarceration and freeze assets is structurally imbalanced. The Enforcement Directorate and the state exploit the long-standing, persisting confusion regarding the relationship between predicate offences and money laundering to keep the proceedings under the PMLA alive despite the dismissal of the predicate offence. The hon’ble Supreme Court in Vijay Madanlal Choudhary vs Union of India stated ‘The Principle of Automatic Collapse’ which states that the proceedings under PMLA automatically collapses, when the individual is discharged or acquitted from the proceedings of the scheduled offences. However, several High Courts have refused to quash the proceedings under the PMLA, creating confusion regarding the course of the proceedings. The ‘veil upon liberty’ is neither a procedural lapse nor an administrative defect; rather, it is a deliberate institutional design. A structural design that traps the individual in an indefinite loop of statutory impossibility of bail under Section 45 and the delayed trial procedure, making incarceration the rule and bail the exception. Consequently, the procedure ceases to function as an anti-money laundering mechanism and instead operates as an instrument of executive control and facilitates extended incarceration before effective adjudication.

A Façade of Cure: The Judicial Capitulation on Section 45

A reform meant to be a cure is merely an institutional façade designed to normalize structural dominance through judicial sanction and public legitimacy. When trials under the PMLA extend for decades, the constitutional right to a speedy trial becomes a luxury an accused can scarcely afford. The guarantee of personal liberty under Article 21 is rendered largely imaginary by the near-impossible bail conditions imposed by Section 45. The state effectively creates a system of prolonged incarceration in which the accused remain trapped within an inescapable procedural cycle. The hon’ble Supreme Court in Nikesh Tarachand Shah vs Union of India declared Section 45(1) unconstitutional for violating Articles 14 and 21 of the Constitution. After the judgement, Section 45(1) was amended through the Finance Act of 2018. This amendment changed the text of the provision from a scheduled offence punishable by more than three years of imprisonment to offences under this Act. This amendment had two drastic effects on the study. First, this removed the scheduled offences punishable for more than 3 years of imprisonment. Second, this made the ‘twin conditions’ applicable to all the offences of money laundering under the Act. This change made bail conditions harder in the name of resolving the issue highlighted by the Court in the Nikesh Tarachand judgement.

The ultimate collapse of institutional capitulation occurred in Vijay Madanlal Choudhary vs Union of India (2022), where the Supreme Court, in a three-judge bench, tactically utilized formal logic to validate the legislative intent. According to the court, Article 14 now applies uniformly to all offences under the Act and cures the arbitrariness identified in Nikesh Tarachand, making uniform oppression constitutionally valid. The court weakened the protection guaranteed under Article 21, holding that fairness can be achieved if statutory provisions are followed. By holding the near-impossible bail provision as harsh but rational. When the Court delivers such decisions, it ceases to function as the primary protector of constitutional rights and instead transforms into a structural facilitator of indefinite pre-trial incarceration.

Arvind Dham vs Enforcement Directorate (2026) highlights the grim procedural reality under the PMLA, where Dham remained incarcerated for 16 months despite prosecution listing 210 witnesses and demonstrating no trial progress. Proceedings can be effectively stalled by the ED through prolonged document scrutiny and withholding investigative materials from administrative archives. The court recognized that the ED cannot indefinitely freeze an individual’s liberty through endless procedural delays. This marked a shift from the ‘reverse burden’ under Section 24 to the ‘performance burden’ on the state. This judicial stance appears to reclaim constitutional rights from a Critical Legal Studies perspective, which is a function of preserving structural dominance. Prolonged pre-trial incarceration severely undermines public confidence in the legal system, and the ‘wherewithal test’ functions as a calculated judicial concession designed to diffuse public distrust and institutional criticism while leaving the broader coercive framework of the PMLA substantively intact.

Conclusion

The PMLA, enacted to punish the economic offenders and prevent money laundering, has increasingly become a tool for exercising structural dominance over financial activity of corporates. It structurally dismantles the foundational principles of criminal law in order to assert power over individuals, while simultaneously presenting itself as an effective preventing mechanism. By reversing the burden of proof and making bail as an exception rather than a rule, the PMLA has turned the foundations of common law upside down. The judiciary’s role in addressing damage caused by the PMLA has undergone a complete reversal, from declaring the ‘twin conditions’ unconstitutional to subsequently validating the amended section 45. Even the attempt to reclaim constitutional liberties in the Arvind Dham case appears less like a restoration of rights and more like a restructuring the dominance behind the façade of justice. This represents a clear illustration of the ‘rule by law’ rather than ‘rule of law’. Critical Legal Studies (CLS) views law not as a neutral institution, but as a mechanism shaped by political power, ideological interests and institutional bias. The PMLA appears to embody this reality by granting sweeping powers to authorities over individuals, thereby weakening procedural safeguards under the guise of combating economic fraud.