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5. Shri Mukul Rohatgi, learned senior advocate appearing on behalf of the petitioners, has argued before us that Section 45 of the said Act, when it imposes two further conditions before grant of bail is manifestly arbitrary, discriminatory and violative of the petitioner’s fundamental rights under Article 14 read with Article 21 of the Constitution. According to learned senior counsel, at the stage that the said Act was a Bill (which was referred to a Standing Committee on Finance of the Parliament, and which presented its report on 4.3.1999 to the Lok Sabha), the Central Government broadly accepted the recommendations of the Standing Committee, which were then incorporated in the said Bill along with some other changes. At this stage, argued Shri Rohatgi, it is interesting to note that Clauses 43 and 44 of the Bill, which correspond to Sections 44 and 45 of the present Act, were very differently worded and dealt only with offences under the 2002 Act. The twin conditions laid down as additional conditions for grant of bail were, at this stage, only qua offences under the 2002 Act. When Parliament enacted the 2002 Act, this scheme was completely changed in that Section 45 of the Act now spoke only of the predicate/scheduled offence and not the offence under the 2002 Act. In the present Act, a scheduled offence, which is an offence under other penal laws contained in Part A of the Schedule, that is tried with offences under the Act, bail would be granted only after satisfying the twin conditions laid down in the Section. Also, when the Act was originally enacted, according to learned senior counsel, part A of the Schedule was very sparsely populated, in that it comprised of two paragraphs only consisting of two offences under the Indian Penal Code, 1860 and 9 offences under the Narcotic Drugs and Psychotropic Substances Act, 1985. These offences were considered extremely heinous by the legislature and were, therefore, classified apart from offences under Part B, which dealt with certain other offences under the Indian Penal Code and offences under the Arms Act 1959, Wildlife (Protection) Act 1972, Immoral Traffic (Prevention) Act, 1956 and the Prevention of Corruption Act, 1988. According to learned senior counsel, this classification was maintained right until the Amendment Act of 2012, which then incorporated Part B offences into Part A of the Schedule, resulting in offences under 26 Acts, together with many more offences under the Indian Penal Code, all being put under Part A. This, according to learned senior counsel, was done because the definition of “scheduled offence” in Section 2(y) of the Act made it clear that, if offences are specified under Part B of the Schedule at the relevant time, the total value involved for such offences should be Rs.30 lakhs or more. The idea behind the 2012 Amendment, as the Statement of Objects of the said Amendment discloses, is that this limit of Rs.30 lakhs be removed, which is why the entire Part B of the Schedule was subsumed in Part A. He further argued that the object was not to deny bail to those charged with offences under the erstwhile Part B, and that putting Part B offences together with heinous offences in Part A would amount to treating unequals equally and would be discriminatory and violative of Article 14 of the Constitution. In addition, such lumping together of disparate offences would have no rational relation to the object sought to be achieved by the Amendment Act of 2012, that is to obviate the Rs.30 lakh limit qua Part B offences, and it would violate Article 14 on this ground as well. According to learned senior counsel, the change from the original scheme of the Bill to introducing offences outside the 2002 Act dependent upon which bail would be granted, with the twin conditions as aforestated first having to be satisfied, is itself manifestly arbitrary, in that the predicate offence, which is the scheduled offence, and the classification of such offence as being punishable with three years or more would again be wholly irrelevant and would have absolutely no rational relation to the object of granting bail insofar as offences under the 2002 Act are concerned. Learned senior counsel also referred to Article 21 of the Constitution and stated that the aforesaid procedure would be unfair, unjust and would fall foul of Article 21 inasmuch as it would certainly fall foul of the US Constitution’s Eighth Amendment which interdicts excessive bails. Since this Court has recognized that this feature of the Eighth Amendment would fall within Article 21, it would be a direct infraction thereof. He also argued that a person will be punished for an offence contained under the 2002 Act, but will be denied bail because of a predicate offence which is contained in Part A of the Schedule, which would again render Section 45(1) as manifestly arbitrary and unreasonable. He referred to Nikesh Tarachand Shah’s case, which is Writ Petition (criminal) No.67 of 2017, in which the scheduled offences were Sections 120B, 409, 420, 471 and 477A of the Indian Penal Code read with Section 13 of the Prevention of Corruption Act. These offences were being investigated by the CBI in CBI Special Case No.91/2009 in which the petitioner was granted bail by the Sessions Court by an order dated 10.12.2015. When the offence under the 2002 Act was added to the aforesaid offences, thanks to the applicability of the twin conditions in Section 45(1), he was denied bail with effect from 27.11.2015, which itself shows that Section 45(1) is being used in an extremely manifestly arbitrary fashion to deny bail for offences which extend only to seven years under the 2002 Act, as opposed to predicate offences which may extend even to life imprisonment. Also, according to learned senior counsel, the threshold of three years and above contained in Section 45 of the 2002 Act is itself manifestly arbitrary in that it has no reference to the offence of money laundering under the 2002 Act, but only to three years and more of the predicate offence. There is no condition, so far as the 2002 Act is concerned, of classification based on the amount of money that is laundered, which perhaps may be a valid basis for classification. Also, according to learned senior counsel, if the twin conditions of Section 45(1) are to be satisfied at the stage of bail, the defendants will have to disclose their defence at a point in time when they are unable to do so, having been arrested and not being granted bail at the inception itself. Another conundrum raised by Section 45 is the fact that, there being no interdict against anticipatory bail in the 2002 Act, and the Code of Criminal Procedure applying to offences under the 2002 Act, it would be clear that anticipatory bail could be granted for both offences under the 2002 Act and predicate offences. This being so, unlike the Terrorist and Disruptive Activities (Prevention) Act 1987, where anticipatory bail expressly cannot be granted, the twin conditions of Section 45 would not apply at the anticipatory bail stage, which would mean that a person charged of money laundering and a predicate offence could continue on anticipatory bail throughout the trial without satisfying any of the twin conditions, as opposed to a person who applies for regular bail, who would have to satisfy the twin conditions, which in practice would mean denial of bail. For all these reasons, according to learned senior counsel, Section 45 needs to be struck down. Also, according to learned senior counsel, it is not possible to read down the provision to make it constitutional as the very scheme of Section 45 is manifestly arbitrary and irrational. Shri Rohatgi cited various judgments to buttress his submissions which will be referred to by us in the course of this judgment.

12. The next great milestone in English history is the Bill of Rights of 1689, which was accepted by the only Dutch monarch that England ever had, King William III, who reigned jointly with his wife Queen Mary II. It is in this document that the expression “excessive bail ought not to be required….” first appears in Chapter 2, clause 10.

13. What is important to learn from this history is that clause 39 of Magna Carta was subsequently extended to pre-trial imprisonment, so that persons could be enlarged on bail to secure their attendance for the ensuing trial. It may only be added that one century after the Bill of Rights, the US Constitution borrowed the language of the Bill of Rights when the principle of habeas corpus found its way into Article 1 Section 9 of the US Constitution, followed by the Eighth Amendment to the Constitution which expressly states that, “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”. We may only add that the Eighth Amendment has been read into Article 21 by a Division Bench of this Court in Rajesh Kumar v. State through Government of NCT of Delhi (2011) 13 SCC 706, at paragraphs 60 and 61.

60. The Eighth Amendment (1791) to the Constitution of the United States virtually emanated from the English Bill of Rights (1689). The text of the Eighth Amendment reads, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”. The English Bill of Rights drafted a century ago postulates, “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”.

61. Our Constitution does not have a similar provision but after the decision of this Court in Maneka Gandhi case [(1978) 1 SCC 248] jurisprudentially the position is virtually the same and the fundamental respect for human dignity underlying the Eighth Amendment has been read into our jurisprudence.

“In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception. We hold that the provisions for pretrial detention in the Bail Reform Act of 1984 fall within that carefully limited exception. The Act authorizes the detention prior to trial of arrestees charged with serious felonies who are found after an adversary hearing to pose a threat to the safety of individuals or to the community which no condition of release  can dispel. The numerous procedural safeguards detailed above must attend this adversary hearing. We are unwilling to say that this congressional determination, based as it is upon that primary concern of every government—a concern for the safety and indeed the lives of its citizens—on its face violates either the Due Process Clause of the Fifth Amendment or the Excessive Bail Clause of the Eighth Amendment.” In a sharply worded minority judgment of Justice Marshall, with whom Justice Brennan agreed, the minority held that the Bail Reform Act, which permitted pre-trial detention on the ground that the person arrested is likely to commit future crimes would violate substantive due process and the 8th amendment to the US Constitution. This it did with reference to an earlier judgment, namely, Stack v. Boyle, 342 US 1, where Chief Justice Vinson stated that unless pre-trial bail is preserved, the presumption of innocence secured only after centuries of struggle would lose its meaning. The dissenting judgment concluded: