Independence and temporality: examining the PMLA in India

Sameer Sharma

Journal of Money Laundering Control, 2020, vol. 23, issue 1, 208-223

Abstract: Purpose - The Prevention of Money Laundering Act (the PMLA/the Act) was enacted in India in 2002. Since then, Indian courts have had to deal with two interconnected issues owing to the nature of the offence of money laundering (ML) as conceived in the Act itself. The first issue relates to the independence of the offence of ML from the conviction of the underlying offence; and the second is the manner in which the PMLA operates – whether it does so retrospectively or prospectively. The purpose of this paper is to delve into these questions as there is no definitive and binding answer provided for by the courts. It aims to provide normative answers to the above-mentioned questions to enable better functioning of the Act. Design/methodology/approach - This research paper examines international conventions relating to ML, reports by inter-governmental bodies, the statutory language of the Act and judgements rendered by courts. Findings - The paper goes on to conclude that for fulfilling the purpose of the Act, the offence of ML must be considered separate from the conviction of the predicate offence. As a result, it also concludes that the Act must apply in instances where the predicate offence was committed prior to its inclusion in the Act’s Schedule if the act of ML occurs after such inclusion. Originality/value - There does not exist any scholarly literature addressing the judiciary’s interpretation of the Act regarding the said two issues in a systematic fashion. Added to this is the fact that there exist uncertainty and ambiguity because of conflicting judgements. By analyzing international instruments, the phraseology of the Act and contradictory case-law, this paper attempts to find definitive solutions to the said two questions in a purposive manner.

Keywords: India; Anti money laundering; Prevention of Money Laundering Act; Stand-alone offence; Burden of proof; Retrospectivity (search for similar items in EconPapers)
Date: 2020
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Persistent link: https://EconPapers.repec.org/RePEc:eme:jmlcpp:jmlc-05-2019-0042

DOI: 10.1108/JMLC-05-2019-0042

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