Gautam Bhatia 
The following is an excerpt from The Indian Constitution: A Conversation with Power by Gautam Bhatia.
In 2022, the Supreme Court heard a comprehensive challenge to the provisions of the Prevention of Money Laundering Act. The PMLA is one of the ‘special statutes’.
The Indian Constitution and its investigating agency—the ED—has been particularly active in recent years. The record speaks for itself: while the case was being heard, a detailed investigative report revealed a sharp rise in the use of the ED, including the targeting of opposition politicians.
The Supreme Court upheld the provisions of the PMLA, including the powers of arrest, search, and seizure, and the ‘twin test’ for bail. While the judgment was decried for the effective carte blanche that it gave to a centrally controlled investigative agency in exercising its coercive powers, the Supreme Court’s reasoning marks the culmination of the legal doctrines that we’ve discussed above, rather than a break with the past. In essence, the Court subordinated the reality of the coercive power enjoyed by the ED over the individual to the formal terminology used by the law (au courant with its doctrinal history under Article 20(3)), and to the continuing existence of an ordinarily extraordinary state of affairs in order to justify that power (consistent with its doctrinal history under Articles 21 and 22).
Thus, the ED’s powers of arrest—including the power not to reveal the grounds of arrest to the individual—were upheld on the basis that the PMLA was not really a penal statute, and that the ED was not really akin to the police (despite having all the powers of the police, and wielding them with much greater enthusiasm). The same reasoning was then used by the Court to exclude the applicability of the right against self-incrimination as well as the bar on confessions to police officers under the Evidence Act to the PMLA and the ED: the ED’s officials were not really police officers, and the persons they were questioning in custody were not technically ‘accused of an offence’. The ‘twin test’ for bail was not itself challenged on substantive grounds, but rather on grounds of procedural arbitrariness, and was likewise upheld.
Also read: Reforming Anti-Money Laundering Laws: Insights from Supreme Court Rulings
Vijay Madanlal Choudhary, therefore, was only the latest milestone along a road that the Supreme Court had been walking for a long time, marked by inflection points such as Romesh Chandra Mehta, Kartar Singh, and other such judgments. Vijay Madanlal Choudhary saw a convergence of these paths upon one overarching doctrine of subordinating the constitutional guarantees of individual freedom to the logic of State power. As Sekhri summed up the state of play in the immediate aftermath of the judgment:
… Vijay Madanlal Choudhary is a conservative decision, inasmuch as the Supreme Court has simply remained faithful to its inglorious past of taking away all semblance of safeguards to personal liberty and property when it comes to socio-economic offences. Restrictive bail conditions in independent India first came for the essential supplies law before they became famous for anti-terror laws; reverse burdens were held good in 1964 when it came to gold smuggling; the guarantee of Article 20(3) was held inapplicable till customs officials or those from the registrar of companies concluded their inquiry given the theoretical possibility that such inquiries might, till that stage, not end in prosecution … what the PMLA does, is that it weaves together all the restrictive, rights-effacing clauses from this illustrious past in one fine blanket, and it then goes a step further. It is not restricted to just the smuggler or hoarder, but to practically anyone … in its reach and deleterious impact on basic freedoms, the PMLA is truly a sui generis law unlike any other. The judgment in Vijay Madanlal Choudhary was an opportunity to trim it down to size and prevent it from becoming another MISA from the 1970s; instead, the Court has, for now, green-lit that very outcome.
In his famous book, The Jurisprudence of Emergency, Nasser Hussain challenges us to examine how ‘the concept of emergency cannot be separated from the logic of a rule of law’. While Hussain’s arguments are located within the context of colonial constitutionalism — in particular, how racial difference contributed to the ‘interplay between norm and exception’ — as he himself notes, the blurred lines between the two concepts have had a long afterlife in the post-colony. In this chapter, we have seen how the Indian Constitution is a stark illustration of this: Articles 20 to 22 represent what Hussain calls ‘attempt[s] to regulate the claim of necessity by rules … to locate [such claims] within a normative legality’.
The interpretive borders of this finely wrought scheme, however, were left porous by design, and ill-suited for containing what the 1818 Bengal Regulation first referred to as ‘the reasons of State’. In this context, Articles 20 to 22 have been a terrain of contestation between the ‘contrary impulses’ enabling the exercise of State power upon the individual, and constraining it. Through various inflection points, the courts have contracted the boundaries of constitutional constraint, allowing—in effect—an eternal state of necessity, a permanent exception. The courts thus have taken what was originally a colonial justification of a permanent emergency, and sanctified it with the authority of a post-colonial Constitution. Vijay Madanlal Choudhary is the most striking and most recent example of this tradition. But it is, at the end of the day, a tradition of constitutional interpretation as old as the Constitution itself, and deeply embedded in its structure, design, and vision of State power.
Gautam Bhatia is a Delhi-based lawyer.